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N\«>»Si««SS!SS:Si 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


7064 


The 

Essentials  of  American 
GonstittitiOhal  -taw 


By 
Francis  Newton  Thorpe,  Ph.D.  LL.D. 

(Of  the  Pennsylvania  Bar) 

Professor  of  Political  Science  and  Constitutional  Law 

University  of  Pittsburgh 


"It  is  a  Constitution  we  are  expounding." — John  Marshall 


G.  P.  Putnam's  Sons 

New  York  and  London 
Cbe  Unicfter&ocfter  press 


T 
739842 e 

Copyright,  19 17 

BY 

FRANCIS  NEWTON  THORPE 


>1^ 


Made  in  the  United  States  of  America 


70643 


•  AD  *  JUVENES  • 

•  LEGUM  *  STUDIOSOS  » 

*  QUANDO  * 
•  ADVOCATOS  *  JUDICES  « 

•  LEGISLATORES  * 

•  HODIE  * 

•  ANNORUM  *  AMICOS  • 

•  HIC  *  LIBELLUS  • 
•  DEDICATUS  « 


PREFACE 

The  principles  of  American  constitutional  law 
are  the  foundation  of  all  judicial  decisions,  and  it  is 
(as  Marshall  observes)  "the  province  and  duty  of 
the  Courts  to  say  what  the  law  is."  Judicial 
decisions,  however,  are  technical,  are  handed  down 
by  experts,  and  set  forth  authoritatively  as  results 
of  experience  which  the  junior  student  of  the  law 
is  likely  to  find  difficult,  if  not  incomprehensible. 
But  to  attempt  merely  to  simplify  the  law,  or  its 
interpretation  by  the  Courts,  is  likely  to  result  in 
variation  from  the  original  spirit  and  purpose  of  the 
law:  because  decisions  are  essentially  a  reduction  of 
questions  at  issue  to  a  principle,  and  laws  themselves 
are  (or  ought  to  be)  simple,  clear,  comprehensive, 
and  complete. 

For  purposes  of  study  or  instruction  it  is  necessary 
to  bring  the  principle  involved  in  a  law  (be  it  the 
Supreme  Law  of  the  Land, — that  is,  the  Constitution, 
a  Treaty,  or  an  Act  of  Congress;  or  a  State  Constitu- 
tion, or  an  Act  of  a  State  Legislature)  within  the 
compass  of  a  principle,  or  a  fundamental,  by  examina- 


vi  Preface 

tion  of  an  issue,  or  issues,  in  which  the  principle  is 
involved.  There  must  ever  be  before  the  Court 
the  issue  and  the  law,  and  the  law  itself  may  be  an 
issue,  in  the  American  system  of  government  which 
recognizes  the  authority  of  the  Court  to  pass  on  the 
constitutionality  of  the  law. 

But  principles  are  not  numerous.  Possibly  in 
Nature  there  is  but  one  basic  principle  and  all  oui" 
so-called  "natural  laws"  are  but  aspects  of  that 
principle  as  the  human  mind  conceives  or  recognizes 
it.  The  analogy  in  government  permits  the  asser- 
tion that  the  principles  of  constitutional  law  are 
few.  Possibly  they  are  severally  aspects  of  one 
principle:  that  of  sovereignty.  To  the  student  of 
the  law,  especially  to  jimior  students,  principles  are 
matters  of  memory  rather  than  of  understanding. 
It  is  a  vigorous  and  essentially  mature  mind  that 
can  reduce  a  complex  issue  to  such  simple  form  as  to 
deduce  the  principle  on  which  it  rests. 

Books  on  American  constitutional  law  should  be 
simple,  comprehensive,  authoritative,  and  specially 
adapted  to  the  conditions  under  which  the  subject 
is  pursued.  In  later  years  the  subject  is  usually 
approached  through  two  books:  a  treatise  on  con- 
stitutional law,  and  a  book  (collection)  of  leading 
cases  illustrative  of  the  principles  involved.  The 
tendency  is  toward  bulky  volumes.  Meanwhile 
other     subjects     than     constitutional     law, — other 


Preface  vii 

branches  of  the  law, — must  be  pursued.  Multi- 
plicity of  subjects  is  characteristic  of  the  curriculum 
whether  at  Law  School  or  at  College  or  University. 
Time  is  brief:  studies  are  many.  The  necessary 
result  is  concentration  upon  the  essentials  of  a 
subject, — careful  isolation  of  its  principles  together 
with  familiarity  with  authoritative  illustrations  of 
their  application.  This  means  a  small,  compact, 
authoritative  book  on  the  subject.  There  are  few 
principles, — there  are  innumerable  applications  of 
them.  Values  are  twofold, — perception  of  the 
principle,  and  understanding  of  its  application. 
The  question  is  not  "What  principle?"  but  rather, 
"What  application?"  Thus  the  student  of  law  may 
wisely  be  led  to  consider,  to  weigh,  to  study  the 
great  or  the  leading  application  of  a  principle:  that 
is,  he  is  properly  directed  to  the  important  decisions 
of  the  Courts  of  Law.  In  America,  these  decisions 
are  handed  down  by  the  Supreme  Courts  of  States 
and  the  Supreme  Court  of  the  United  States.  From 
these  decisions  the  principles  of  our  constitutional 
law  may  be  derived.  Great  writers,  like  Hamilton, 
Madison,  Kent,  Story,  or  Cooley,  must  be  listened 
to:  but  it  is  the  Court  of  Law  that  speaks  with 
authority.  Our  great  writers  on  constitutional  law 
and  our  great  judges  sitting  as  Courts  of  Law  prac- 
tically agree  as  to  what  comprise  the  principles  of 
our  constitutional  law. 


viii  Preface 

Whether  the  principles  of  the  law  are  reached 
by  induction  or  by  deduction  does  not  affect  the 
principles.  Judicial  decisions  illustrate  both  methods 
of  approach.  Stated  broadly, — a  treatise  on  con- 
stitutional law  sets  forth  its  principles  and  cites 
decisions  as  illustrations  of  their  application;  a 
collection  of  cases  provides  many  illustrations  from 
which  the  principles  may  be,  or  are,  deduced.  By 
combining  the  treatise  and  the  case-book  (and  the 
present  volume  may  be  used  in  connection  with  any 
of  the  current  "Collections"  of  "Leading  Cases") 
the  benefits  of  both  methods, — deductive  and  induc- 
tive,— are  realized.  Whether  the  two  sorts  of  books 
are  used  together,  or  in  succession,  must  depend 
upon  the  time,  the  place,  and  the  importance  as- 
signed to  the  subject  itself.  Highly  beneficial  results 
have  followed  when  a  first  semester  has  been  given  to 
the  treatise,  and  a  second  to  the  cases,  whether  in  a 
"Collection"  (of  which  there  are  several  of  highest 
value  now  in  use),  or  in  the  original  "Reports." 

But  constitutional  law  is  more  than  a  technical 
subject  for  a  Law  School:  it  is  a  branch  or  part  of 
the  study  of  government, — of  political  philosophy 
so-called.  It  is  a  branch  of  "Politics"  as  Aristotle 
uses  that  word.  Hence  it  is  also  a  "culture"  study, 
entitled  to  a  respectable  place  in  the  curriculum  of 
College  or  University.  But  as  such  a  study,  it  must 
also  be  pursued  as  are  other  branches  of  philosophy. 


Preface 


IX 


Whatever  part  it  has  as  dialectics  it  also  has  part 
in  the  interpretation  of  the  government, — of  the 
sovereignty  behind  that  government, — under  which 
we  live.  The  difficulties  of  constitutional  law  are 
also  the  difficulties  of  government  and  of  philosophy 
itself. 

Shall  the  college  man  leave  college  with  a  fair 
knowledge  of  the  principles  of  the  Supreme  Law 
under  which  he  lives?  That  is  the  question.  What- 
ever book  or  books  or  method  best  brings  that  con- 
summation is  the  best. 

F.  N.  T. 

University  of  Pittsburgh. 


CONTENTS 

CHAPTER  I. 

PAGB 

The  Supreme  Law i 

CHAPTER  II. 

The  Law  of  Legislative  Powers  (i)      .        .       i8 

CHAPTER  III. 

The  Law  of  Legislative  Powers  (2)      .         ,       33 

CHAPTER  IV. 

The  Law  of  Taxation 51 

CHAPTER  V. 

The  Law  of  Commerce 63 

CHAPTER  VI. 

The  Law  of  Contracts  and  Property   .         .       89 

CHAPTER  VII. 

The  Law  of  the  Executive  Power        ,         .     102 

CHAPTER  VIII. 

The  Law  of  Judicial  Power  .         .         .         .113 

CHAPTER  IX. 

The  Law  of  State  Comity,  Territories,  and 

Possessions 143 

zi 


xii  Contents 

CHAPTER  X.  PAGE 

The  Law  of  Limitations         .         .         .         .164 

CHAPTER  XI. 

The  Law  of  Fundamental  Rights  .         .         .191 

CHAPTER  Xn. 

The  Law  of  Citizenship  .         .         .         .212 


The  Constitution  of  the  United  States        .     230 

Cases  Cited 265 

Index 273 


The  Essentials  of  American 
Constitutional  Law 


The   Essentials  of  American 
Constitutional  Law 


CHAPTER  I 

THE  SUPREME  LAW 

I .  The  supreme  law  of  the  land  is  the  Constitution, 
and  acts  of  Congress  and  treaties  made  under  its 
authority.  By  this  supreme  law  the  judges  in  every 
State  are  bound,  "anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding." 
All  legislative,  executive,  and  judicial  officers  both  of 
the  United  States  and  of  the  several  States  are  bound 
by  oath  or  affirmation  to  support  the  Constitution, 
and  in  o\ir  actual  government,  every  administrative 
official,  State  or  national,  is  bound  in  like  manner.^ 
Aliens  becoming  American  citizens  by  naturalization, 
— ^by  which  they  disavow  allegiance  to  any  other 
sovereignty, — solemnly  bind  themselves,  by  oath  or 
affirmation,    to   support   the    Constitution.     Every 

'  Art.  vi.,  2,  3,  and  Preamble. 


2  American  Constitutional  Law 

citizen    is    impliedly   under   oath    to    support    the 
Constitution. 

2.  Such  supremacy  of  the  Constitution  is  essential 
to  American  sovereignty.  The  people  of  the  United 
States  ordained  and  established  this  supreme  law. 
They  are  sovereign.  The  oath  or  affirmation  to  sup- 
port it  is  the  formal  and  sovereign  promise  of  fidelity 
to  that  sovereign,  to  any  sovereign,  or  quasi-sover- 
eign,— for  example,  to  England,  France,  or  a  State 
in  the  American  Union.  The  supreme  law  of  a 
sovereignty, — its  "constitution,"  may  be  written, 
like  ours,  or  partly  unwritten,  as  the  British  con- 
stitution. The  essential  fact  is  of  the  supremacy  of 
the  law  because  of  the  sovereignty  of  the  law-giver. 

3.  The  laws  of  the  United  States  are  made  by 
Congress  and  the  President,  or  by  Congress  alone 
over  his  veto.  ^  The  laws  of  a  State  are  made  by  its 
legislature  and  governor,  or  by  the  legislature  alone 
over  his  veto;  but  Congress,  the  President,  State 
legislature  and  governors  are  only  agents  of  their 
sovereign:  they  possess  derivative,  not  original, 
powers;  they  represent  sovereignty.  The  American 
sovereign  is  "We  the  People"  of  the  United  States, 
and  for  many  purposes,  "We  the  People"  of  the 
respective  States.  All  government  in  America  is 
representative  government.  The  sovereign  makes 
laws  through  its  agents  or  representatives.     No  other 

•Art.  i.,  7:2. 


The  Supreme  Law  3 

method  is  possible  in  a  sovereignty  conceived  and 
operating  as  ours.  Whether  the  law  thus  formulated 
be  a  constitution, — national  or  State, — an  act  of 
Congress  or  of  Assembly,  it  is  an  expression,  on  the 
principle  of  agency,  of  the  will  of  the  sovereign.  The 
Convention  that  frames  a  constitution  is  an  agent  of 
sovereignty;  the  Congress  or  State  Legislature  that 
enacts  a  law  is  an  agent  of  that  sovereignty,  and  that 
sovereignty  prescribes  through  its  agents  the  method 
of  ratifying  and  administering  that  law.  Through 
other  agents,  e.  g.,  the  judiciary,  that  sovereignty 
interprets  constitutions  and  laws.  ^    Legislative,  exe- 

^  The  Supreme  Court  of  Mississippi  in  Sproule  v.  Fredericks,  69 
Miss.  898  (1892),  decided  that  the  Constitutional  Convention  of  that 
State  (1890)  "wielded  the  powers  of  sovereignty  specially  delegated 
to  it,  for  the  purpose  and  the  occasion,  by  the  whole  electoral  body, 
for  the  good  of  the  whole  Commonwealth. "  The  Supreme  Court  of 
Pennsylvania  in  Wells  v.  Bain,  75  Pa.  St.  39  (1874),  decided  that  the 
Convention  of  1872  was  "not  a  co-ordinate  branch  of  the  govern- 
ment," and  possessed  only  "delegated  powers."  The  Supreme 
Court  of  the  United  States,  through  Marshall,  C.  J.,  decided  in  Mc- 
Culloch  V.  Maryland,  4  Wheaton,  316  (1819),  that  the  Constitution 
which  came  from  the  hands  of  the  Federal  Convention  of  1787  "was 
a  mere  proposal,  without  obligation,  or  pretensions  to  it.  By  the 
Convention,  by  Congress,  and  by  the  State  Legislatures,  the  instru- 
ment was  submitted  to  the  people.  They  acted  upon  it,  in  the  only 
manner  in  which  they  can  act  safely,  effectively,  and  wisely,  on  such 
a  subject,  by  assembling  in  convention.  It  is  true  they  assembled 
in  their  several  States;  and  where  else  should  they  have  assembled? 
No  political  dreamer  was  ever  wild  enough  to  think  of  breaking  down 
the  lines  which  separate  the  States,  and  of  compoimding  the  American 
people  into  one  common  mass.  Of  consequence  when  they  act,  they 
act  in  their  States.  But  the  measures  they  adopt  do  not,  on  that 
account,  cease  to  be  the  measures  of  the  people  themselves,  or  become 
the  measures  of  the  State  governments.     From  these  conventions 


4  American  Constitutional  Law 

cutive,  judicial,  and  administrative  officials  consti- 
tute the  governmental  group,  the  public  servants  to 
whom,  for  a  term,  the  sovereign  delegates  some  of 
its  powers.  The  members  of  this  group  are  agents  of 
the  sovereign  and  are  answerable  to  that  sovereign 
as  is  the  agent  to  his  principal. 

4.     Madison,  in  The  Federalist,  states  the  whole 
case :  A  republic  is 

a  government  which  derives  all  its  powers  directly  or 
indirectly  from  the  great  body  of  the  people,  and  is 
administered  by  persons  holding  their  offices  during 
pleasure,  for  a  limited  period,  or  during  good  behavior. 
It  is  essential  to  such  a  government  that  it  be  derived 
from  the  great  body  of  the  society,  not  from  an  incon- 
siderable proportion,  or  a  favored  class ;  otherwise  a  hand- 
ful of  t3Tannical  nobles,  exercising  their  oppressions  by  a 
delegation  of  their  powers,  might  aspire  to  the  rank  of 
republicans,  and  claim  for  their  government  the  honor- 
able title  of  republic.     It  is  sufficient  for  such  a  govern- 


the  Constitution  derives  its  whole  authority.  The  government 
proceeds  directly  from  the  people;  is  "ordained  and  established"  in 
the  name  of  the  people;  and  is  declared  to  be  ordained,  "in  order  to 
form  a  more  perfect  union,  estabUsh  justice,  insure  domestic  tran- 
quillity, and  secure  the  blessings  of  liberty  to  themselves  and  to 
their  posterity. ' '  The  assent  of  the  States  in  their  sovereign  capacity 
is  imphed  in  calling  a  convention,  and  thus  submitting  that  instru- 
ment to  the  people.  But  the  people  were  at  perfect  Uberty  to  accept 
or  reject  it;  and  their  act  was  final.  It  required  not  the  affirmance, 
and  could  not  be  negatived  by  the  State  governments.  The  Con- 
stitution when  thus  adopted  was  of  complete  obligation,  and  bound 
the  State  sovereignties."  The  character  of  the  Constitution,  its 
purport  and  principles,  is  examined  in  Martin  v.  Hunter's  Lessee,  I 
Wheaton,  304  (1816).     Decision  by  Story,  J. 


The  Supreme  Law  5 

ment  that  the  persons  administering  it  be  appointed, 
either  directly  or  indirectly,  by  the  people,  and  that  they 
held  their  appointments  by  either  of  the  tenures  just 
specified;  otherwise  every  government  in  the  United 
States,  as  well  as  every  other  popular  government  that 
has  been  or  can  be  well  organized  or  well  executed,  would 
be  degraded  from  the  republican  character.  ^ 

5.  The  supreme  law  of  the  land  represents  the 
will  of  the  people  of  the  United  States  for  purposes  of 
government.  The  authority  of  that  law  is  derived 
wholly  from  the  people.  They  may  change  or  amend 
it  at  any  time.  They  prescribe  the  procedure  for  such 
change  or  amendment.^  Through  this  supreme  law 
the  entire  public  business  is  carried  on.  The  consti- 
tution of  Massachusetts  sets  forth  the  essential  fact: 

All  power  residing  originally  in  the  people,  and  being 
derived  from  them,  the  several  magistrates  and  officers 
of  government,  vested  with  authority,  whether  legislative, 
executive,  or  judicial,  are  their  substitutes  and  agents, 
and  are  at  all  times  accountable  to  them.  ^ 

The  distinction  between  original  and  derivative 
powers  made  by  the  constitution  of  Massachusetts 
is  true  of  the  supreme  law  of  the  United  States. 

6.  The  quality  of  supremacy  involves  and  implies 
sovereignty.     Sovereignty    is    indefinable;    is    not, 

'  No.  xxxix.  '  Art.  v. 

3  Constitution  (1780  to  date)  Pt.  I.  Art.  iv.  The  words  "substi- 
tutes and  agents  "  may  be  considered  equivalent  to  the  modern  words 
"administrative  officers. " 


6  American  Constitutional  Law 

strictly  speaking,  comprehensible.  There  is  there- 
fore a  difference  between  sovereignty  and  government. 
Sovereignty  ordains  and  establishes  a  form  of  govern- 
ment. The  form  varies  among  different  peoples  and 
at  different  times.  The  Constitution  declares  that 
"The  United  States  guarantees  to  every  State  in 
this  Union  a  republican  form  of  government."" 
This  form,  in  America,  is  the  creation,  that  is,  the 
creature,  of  the  sovereign,  the  people.  The  essential 
matter  here  is  of  powers  and  relations,  and  is  made 
clear  by  Chief  Justice  Marshall :  The  government  of 
the  United  States  proceeds  directly  from  the  people; 
is  ordained  and  established  in  their  name  for  definite 
purposes  declared  in  the  Preamble  to  the  Constitu- 
tion, and  the  assent  of  the  States  in  their  sovereign 
capacity  is  implied  in  calling  the  Convention  of  1787, 
which  framed  the  Constitution,  and  in  submitting 
that  instrument  to  the  people.  The  people  were  at 
perfect  liberty  to  accept  or  to  reject  it,  and  their  act 
was  final.  It  required  not  the  affirmance  and  could 
not  be  negatived  by  the  State  governments.  When 
thus  adopted,  the  Constitution  was  of  complete 
obligation,  and  bound  the  State  sovereignties.  ^  But 
had  not  the  people  of  America,  in  1787,  already  sur- 
rendered all  their  powers  to  the  State  sovereignties 
and  had  nothing  more  to  give  ?    The  question  whether 

» Art.  iv.,  4. 

*  McCuUoch  V.  Maryland,  note,  supra. 


The  Supreme  Law  7 

they  may  resume  and  modify  the  powers  granted 
to  their  government  cannot  be  raised  in  this  country. 
The  people  always  possess  that  power  and  since  1787 
they  have  exercised  it  in  making  seventeen  amend- 
ments to  the  Constitution.  The  legitimacy  of  the 
general  government  might  be  doubted  had  it  been 
created  by  the  States,  for  the  States,  as  governments, 
are  creations  of  the  people,  and  possess  only  deriva- 
tive powers.  "The  powers  delegated  to  the  State 
sovereignties  were  to  be  exercised  by  themselves,  not 
by  a  distinct  and  independent  sovereignty  created  by 
themselves."  The  States  were  competent  to  form 
a  league,  such  as  was  the  Confederation  of  1781, 

but  when  "in  order  to  form  a  more  perfect  Union"  it 
was  deemed  necessary  to  change  this  alliance  into  an 
effective  government,  possessing  great  and  sovereign 
powers,  and  acting  directly  on  the  people,  the  necessity 
of  referring  it  to  the  people,  and  of  deriving  its  powers 
directly  from  them,  was  felt  and  acknowledged  by  all. 
The  government  of  the  Union  is  emphatically  and  truly 
a  government  of  the  people.  In  form  and  substance  it 
emanates  from  them.  Its  powers  are  granted  by  them 
and  are  to  be  exercised  directly  on  them,  and  for  their 
benefit.  This  government  is  acknowledged  by  all  to  be 
one  of  eniunerated  powers.  But  the  question  respecting 
the  extent  of  the  powers  actually  granted  is  perpetually 
recurring,  and  will  probably  continue  to  arise  as  long  as 
our  system  shall  exist.  The  government  of  the  Union, 
though  limited  in  its  powers,  is  supreme  within  its  sphere 
of  action.^ 

'  McCulloch  V.  Maryland,  note,  supra. 


8  American  Constitutional  Law 

This  supremacy  results  from  the  nature  of  the 
government. 

It  is  the  government  of  all;  its  powers  are  delegated  by- 
all;  it  represents  all,  and  acts  for  all.  Though  any  one 
State  may  be  willing  to  control  its  operations,  no  State 
is  willing  to  allow  others  to  control  them.  The  nation,  on 
those  subjects  on  which  it  can  act,  must  necessarily  bind 
its  component  parts.  But  this  question  is  not  left  to 
mere  reason;  the  people  have  in  express  terms  decided 
it  by  saying,  this  Constitution  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof, 
and  all  treaties  made  under  its  authority,  shall  be  the 
supreme  law  of  the  land,  and  by  requiring  executive, 
legislative,  judicial  (and  administrative)  officers  to 
take  the  oath  of  fidelity  to  it.  ^ 

7.  The  question  of  sovereignty  arises  here  and, 
as  commonly  stated,  of  national  sovereignty  and  of 
State  sovereignty.  The  equal  vote  allowed  each 
State  by  the  Constitution,^  "is  at  once  a  recognition 
of  the  portion  of  sovereignty  remaining  in  the  in- 
dividual States,  and  an  instrument  for  preserving 
that  residuary  sovereignty. "  ^  Are  there  two  sover- 
eignties in  America? 

The  sovereignty  of  a  State  [declares  Marshall],  extends 
to  everything  which  exists  by  its  authority,  or  is  intro- 
duced by  its  permission;  but  does  not  extend  to  these 
means  which  are  employed  by  Congress  to  carry  into 
execution  powers  conferred  on  that  body  by  the  people 

*  Idem.     (The  language  of  the  Court  slightly  paraphrased.) 

*  Art.  V.  3  The  Federalist,  No.  Ixii. 


The  Supreme  Law  9 

of  the  United  States.  These  powers  are  not  given  by  the 
people  of  a  single  State,  but  by  the  people  of  the  United 
States  to  a  government  whose  laws,  made  in  pursuance  of 
the  Constitution,  are  declared  to  be  supreme.  Conse- 
quently, the  people  of  a  single  State  cannot  confer  a 
sovereignty  which  will  extend  over  them.^ 

8.  The  exercise  of  the  taxing  power  illustrates  the 
principle  here  involved.  The  power  of  taxation  re- 
siding in  a  State  measures  the  extent  of  sovereignty 
which  the  people  of  a  single  State  possess,  and  can 
confer  on  its  government. 

We  have  a  principle  (here)  [continues  Marshall],  which 
leaves  the  power  of  taxing  the  people  and  property  of  a 
State  unimpaired ;  which  leaves  to  a  State  the  command 
of  all  its  resources,  and  which  places  beyond  its  reach  all 
these  powers  which  are  conferred  by  the  people  of  the 
United  States  on  the  government  of  the  Union,  and  all 
these  means  which  are  given  for  the  purpose  of  carrying 
these  powers  into  execution.  We  have  a  principle  which 
is  safe  for  the  States  and  safe  for  the  Union.  .  .  .  The 
people  of  the  United  States  did  not  design  to  make  their 
government  dependent  on  the  States.  The  government 
of  the  Union  possesses  general  powers  of  taxation.  .  .  . 
The  people  of  all  the  States  and  the  States  themselves  are 
represented  in  Congress,  and  by  their  representatives 
exercise  this  power.  When  they  tax  the  chartered  in- 
stitutions of  the  States,  they  tax  their  constituents  and 
these  taxes  must  be  uniform.^  But  when  a  State  taxes 
the  operations  of  the  goverrmient  of  the  United  States, 
it  acts  upon  institutions  created  not  by  their  own  constitu- 

'  McCulloch  V.  Maryland. 

^  Art.  i.,  8  : 1 ;  but  see  Amendment  XVI. 


10        American  Constitutional  Law 

ents,  but  by  people  over  whom  they  claim  no  control. 
It  acts  upon  the  measures  of  a  government  created  by 
others,  as  well  as  themselves;  for  the  benefit  of  others  in 
common  with  themselves.  The  difference  is  that  which 
always  exists,  and  always  must  exist,  between  the  action 
of  the  whole  on  a  part,  and  the  action  of  a  part  on  the 
whole,  between  the  laws  of  a  government  declared  to  be 
supreme,  and  these  of  a  government  which,  when  in 
opposition  to  those  laws,  is  not  supreme.  ...  In 
America,  the  powers  of  sovereignty  are  divided  between 
the  government  of  the  Union  and  those  of  the  States. 
They  are  each  sovereign  with  respect  to  the  objects  com- 
mitted to  the  other.* 

Plainly  the  essential  matter  here  is  one  of  func- 
tions. Neither  the  government  of  the  United  States 
nor  that  of  a  State  is  sovereign,  for  each  possesses  only 
delegated  powers.  But  the  powers  delegated  to  the 
two  governments  are  not  for  all  purposes  the  same, 
or  of  equal  extent.  The  two  governments  have 
different  jurisdictions.  Distinctively  federal  func- 
tions are  not  State  functions,  as,  for  example,  the 
distinctively  Federal  functions  of  coining  money, 
making  treaties,  and  declaring  war.""  On  the  other 
hand,  distinctively  State  functions  are  the  exercise 
of  the  police  power  of  the  State,  ^  the  control  of  intra- 
state commerce,  the  power  of  extradition   between 

'  McCulloch  V.  Maryland. 
*  Articles  i.,  8  :5;ii.,  2:2;i.,  lo  :3;i.,  8  :  2. 

3  The  License  Cases,  5  Howard,  504  (1846);  Kimmish  v.  Ball,  129 
U.  S.,  217  (1889);  Cook  V.  Marshall  Company,  196  U.  S.,  261. 


The  Supreme  Law  ii 

States,  ^  the  validity  in  a  State  of  the  public  acts,  re- 
cords, and  judicial  proceedings  of  another  State*  and 
the  right  of  citizens  of  each  State  to  all  privileges  and 
immunities  of  citizens  in  the  several  States.'^ 

9.  The  question  of  the  relative  sovereignty  of  the 
United  States  and  that  of  a  State  is  one  of  jurisdic- 
tion, and  is  determined  by  extent  of  powers  delegated, 
not  of  original  powers  possessed.  Delegated  powers 
are  expressed  in  constitutions  and  laws.  Two  govern- 
ments exist  in  America:  that  of  the  Union  and  that 
of  the  respective  States.  The  Constitution  of  the 
United  States  was  ordained  and  established  by  the 
people  of  the  United  States  for  themselves,  for  their 
own  government  and  not  for  the  government  of  the 
individual  States.''  The  constitution  of  a  State  is 
made  by  the  people  of  that  State  for  themselves  only. 
Sovereignty  in  America  has  declared  the  Constitu- 
tion of  the  United  States  the  supreme  law  of  the  land, 
thus  formally  relegating  State  constitutions  and  laws 
to  inferior  rank, — that  is,  to  a  position  of  powerless- 
ness  when  in  conflict  with  the  supreme  law.  Thus 
when  we  speak  of  two  "sovereignties, "  or  of  "residu- 
ary sovereignty, "  we  really  mean  "two  governments 
of  delegated  powers," — that  is,  the  State  govern- 
ments and  the  national  government.    When  we  speak 

'  Discussed  at  length  in  the  chapters  on  State  Comity,  and  Com- 
merce. '  Art.  iv.  (and  preceding  note). 
J  See  also  Chapters  XII  and  XIII. 
<  Barron  v.  Baltimore,  7  Peters,  243  (1833). 


12        American  Constitutional  Law 

of  the  two  sovereignties,  we  do  not  mean  sovereignty 
(which  is  by  nature  indivisible),  but  government 
(which  is  divisible),  the  creation  of  sovereignty  and, 
unlike  sovereignty,  possesses  only  delegated  powers. 

10.  For  administrative  purposes,  or,  stating  the 
case  in  other  words,  for  legal  reasons  and  in  harmony 
with  precedents  in  law,  the  terms  "sovereignty"  and 
"residuary  sovereignty"  continue  in  use  among 
lawyers,  judges,  political  writers,  and  civil  officials; 
but  government  is  not,  never  was,  and  in  such  a 
country  as  ours,  never  can  be  sovereignty.  American 
constitutional  law  is  law  made  by  authority  of  the 
sovereign  people :  the  law  of  the  United  States  is  made 
by  Congress,  the  authorized  legislative  agent  of  the 
people  of  the  United  States:  the  law  of  the  State,  is 
made  by  its  Legislature,  the  authorized  law-making 
agent  of  the  people  of  the  State.  The  same  essen- 
tial may  be  stated  after  the  manner  of  Chief  Justice 
Marshall  as  the  law  of  the  whole:  the  Nation;  the 
law  of  the  part,  the  State.  Government  is  the  child 
of  sovereignty. 

1 1 .  Because  of  the  sovereignty  of  the  people  of  the 
United  States,  and  consequently,  of  the  supremacy  of 
the  Constitution,  several  results  follow: 

Madison  expresses  one  of  these  in  The  Federalist^ : 

The  idea  of  a  national  government  involves  in  it  not  only 
an  authority  over  the  individual  citizens,  but  an  indefi- 

"  No.  xxxix. 


The  Supreme  Law  13 

nite  supremacy  over  all  persons  and  things,  so  far  as  they 
are  objects  of  lawful  government. 

Marshall  expresses  other  results, — 

The  general  government,  though  limited  as  to  its  objects, 
is  supreme  with  respect  to  these  objects.  This  principle 
is  a  part  of  the  Constitution.  To  this  supreme  govern- 
ment ample  powers  are  confided.  With  the  ample 
powers  confided  to  this  supreme  government  are  con- 
nected many  express  and  important  limitations  on  the 
sovereignty  of  the  States.^ 

Hamilton,  commenting  on  the  Constitution,  de- 
clares that  "the  national  and  State  systems  are  to 
be  regarded  as  one  whole.  "^  And  finally,  although 
our  supreme  law  does  not  contain  the  word  "sover- 
eign," or  "sovereignty,"  it  implies  sovereignty. 
The  crowning  illustration  of  this  principle  of  implied 
sovereignty  grew  out  of  the  acquisition  of  Louisiana 
in  1803.  President  Jefferson  could  find  no  provision 
of  the  Constitution  specifically  empowering  the 
United  States  to  make  the  acquisition,  or  to  incor- 
porate the  region  into  the  United  States.  He  there- 
fore proposed  amending  the  Constitution  so  as  to 
authorize  the  purchase.  The  President's  doubts  of 
the  power  of  the  United  States  to  acquire  Louisiana 
were  weaker  than  his  doubt  of  power  to  incorporate 
the  province  into  the  United  States, — that  is,  to  make 

'  Cohens  v.  Virginia,  6  Wheaton,  382  (1821).  Madison's  thought 
is  incorporated  into  Weston  et  al.  v.  the  City  of  Charleston,  2  Peters, 
466  (1829.)  '  The  Federalist,  No.  Ixxxii. 


14         American  Constitutional  Law 

a  foreign  province  or  provinces  inhabited,  by  an  alien 
people,  partakers  in  an  American  Commonwealth.  He 
consulted  his  Cabinet.  Levi  Lincoln,  the  Attorney- 
General,  was  of  opinion  that  to  share  the  privileges 
and  immunities  of  the  people  of  the  United  States 
with  a  foreign  population  required  the  consent  of  the 
people  of  the  United  States,  and  he  suggested  that  if 
a  treaty  of  cession  were  made,  containing  such  agree- 
ments, it  should  be  put  in  the  form  of  a  change  of 
boundaries  instead  of  a  cession,  so  as  to  bring  the 
territory  within  the  United  States.  Albert  Gallatin, 
Secretary  of  Treasury,  replied  that  to  him  it  appeared : 
(i)  That  the  United  States  as  a  nation  have  an  in- 
herent right  to  acquire  territory;  (2)  That  whenever 
that  acquisition  is  by  treaty,  the  same  constituted 
authorities  in  which  the  treaty-making  power  is 
vested  have  a  constitutional  right  to  sanction  the 
acquisition ;  and  (3)  That  whenever  the  territory  has 
become  acquired.  Congress  have  the  power  either  of 
admitting  it  into  the  Union  as  a  new  State,  or  of 
annexing  it  to  a  State,  with  the  consent  of  that  State, 
or  of  making  regulations  for  the  government  of  such 
territory.^  Thus,  according  to  Gallatin,  the  United 
States,  by  its  very  nature,  has  the  undoubted  right 
to  acquire,  to  hold,  and  to  govern  territory  as  a 
possession. ""     Twenty-five  years  after  the  purchase 

'  Gallatin's  Writings,  i.,  11. 

'  Sustained  by  Downcs  v.  Bidwell,  182  U.  S.,  244  (1901). 


The  Supreme  Law  15 

of  Louisiana,  Chief  Justice  Marshall  handed  down 
the  decision  of  the  Supreme  Court,  that  "the  Con- 
stitution confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making 
treaties;  consequently  that  government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or 
treaty."^  In  this  decision,  Marshall  reasons  as  did 
Gallatin  that  a  nation  is  by  its  very  nature,  sovereign, 
and  possesses  the  powers  and  functions  of  sovereignty. 
When  the  American  nation,  a  sovereign,  created  a 
government  of  delegated  powers,  under  the  Con- 
stitution, it  delegated  to  that  government  powers 
adequate  to  its  purposes  as  a  nation.  ^  The  essential 
purpose  of  sovereignty  is  to  continue  sovereign.  The 
word  "sovereign"  though  not  occurring  in  the 
Constitution  is  necessarily  implied  as  a  permanent 
quality  or  mark  of  the  power  that  ordained  and 
established  the  Constitution.  Sovereignty  cannot  be 
delegated,  but  a  supreme  law,  such  as  the  Con- 
stitution, necessarily  implies  a  sovereignty  that  has 
delegated  the  powers  expressed  or  implied  in  the 
Constitution  itself.  In  other  words,  the  Constitution 
of  the  United  States  is  the  supreme  law  of  the  land 
because  the  people  of  the  United  States  are  a  sover- 

'The  American  Insvirance  Company  v.  Canter,  i  Peters,  511  (1828). 

*  Compare  the  Preamble.  The  entire  discussion  in  The  Federalist 
is  of  the  conformity  of  the  Constitution  to  a  republican  government 
and  of  the  necessity  of  governmental  powers  adequate  to  govern- 
mental purposes. 


i6        American  Constitutional  Law 

eign.  Sovereignty  alone  has  original  powers;  all 
others  are  delegated.  Thus  the  Constitution  itself 
declares  that  "The  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people."^ 

12.  American  constitutional  law  is,  therefore, 
the  authoritative  formulation,  in  constitutional,  or 
statutory,  or  treaty  form,  of  the  will  of  the  sovereign, 
the  people  of  the  United  States.  This  formulation 
accords  with  the  powers  delegated  by  that  sovereign. 
The  expression  of  this  delegation  of  powers  in  the 
conduct  of  the  public  business  is  government. 
Therefore  in  America,  government  is  another  word 
for  the  delegation  of  powers, — for  limitations  of 
authority.  Sovereignty  is  unlimited;  government 
is  limited.  The  Constitution  of  the  United  States 
is  the  supreme  law  of  the  land  because  through  it  the 
people  of  the  United  States, — not  the  people  of  any 
particular  State  or  group  of  States, — have  delegated 
larger  powers  than  have  the  people  of  any  particular 
State  through  its  constitution.  The  whole  is  greater 
than  the  part.  "That  the  people  have  an  original 
right  to  establish  for  their  future  government  such 
principles  as,  in  their  opinion,  shall  most  conduce  to 
their  own  happiness,  is  the  basis  on  which  the  whole 
American  fabric  has  been  erected."^     The  exercise 

'  Art.  X.  '  Marbury  p.  Madison,  i  Cranch,  176  (1803). 


The  Supreme  Law  17 

of  this  original  right  is  an  exercise  of  sovereignty. 
The  result  of  this  exercise,  in  America,  is  the  Con- 
stitution of  the  United  States  which,  this  sovereignty 
declares  to  be  "the  supreme  law  of  the  land."' 

'  Every  question  in  constitutional  law,  in  the  United  States,  sooner 
or  later  leads  back  to  a  question  of  sovereignty.  What  that  sover- 
eignty is  can  be  known  only  by  its  operation, — that  is,  by  political 
experience.  What  powers  are  delegated  by  the  Constitution  is  the 
question  answered  (at  least  in  part)  by  courts  of  law  and  legislatures, 
by  pubUcists  and  by  the  actual  administration  of  government. 
Widely  divergent  interpretations  of  that  sovereignty  and  that  law 
have  been  held  throughout  our  history  as  a  nation.  These  divergent 
opinions  are  recorded  in  the  Debates  during  the  formation  and  ratifica- 
tion of  the  Constitution ;  in  the  discussions  incident  to  the  Kentucky 
and  Virginia  Resolutions  of  1 798 ;  in  the  discussions  relating  to  Nul- 
lification, in  1833;  again  in  i860  and  immediately  prior;  and  in  various 
decisions  of  the  Supreme  Court  of  the  United  States,  Chief  Justice 
Marshall's  decisions  (some  thirty-six  in  number),  the  opinion  of  that 
Court  in  his  time,  remain  the  classic  interpretation  of  national  sover- 
eignty. The  Federalist  remains  the  classic  contemporaneous  inter- 
pretation of  the  Constitution. 

The  issue  involved  is,  fundamentally,  one  of  functions,  and  is 
viewed  at  different  times  with  different  understandings.  As  a  prac- 
tical question,  it  is  one  oi  jurisdiction  as  legally  understood,  but  as  a 
question  of  service  as  politically  understood.  Here  enter  many  and 
diverse  factors  as  morals,  industry,  communal  interest,  public  safety, 
social  needs,  and  the  like.  Questions  growing  out  of  these  are  not 
and  cannot  be  decided  finally  by  any  generation.  Each  generation 
interprets  these  factors.  Thus  constitutional  interpretation  be- 
comes, not  a  fixed  quantity,  but  an  adjustment  to  reason  and  neces- 
sity. Prudence  dictates  that  interpretation  be  conservative.  The 
constitutional  and  political  history  of  America  must  be  read  along 
with  its  constitutional  law.  In  addition  to  cases  already  cited  in  this 
chapter,  the  following  may  advantageously  be  read,  though  each 
contains  matter  of  special  application  to  other  aspects  of  the  subject : 
Ex  parte  Siebold,  100  U.  S.,  371  (1879);  The  Civil  Rights  Cases,  109 
U.  S.,  3  (1883);  Rogers  v.  Alabama,  192  U.  S.,  226  (1904). 


CHAPTER  II 

THE  LAW  OF  LEGISLATIVE  POWERS    (l) 

13.  The  organization  of  the  government  of  the 
United  States  reflects  the  original  and  supreme  will  of 
the  people  as  they  have  seen  fit  to  assign  to  different 
departments  of  that  government  their  respective 
powers.  "The  powers  of  the  Legislature  are  defined 
and  limited;  and  that  these  limits  may  not  be  mis- 
taken, the  Constitution  is  written."'  Thus  the 
Constitution  declares  that  "all  legislative  powers 
herein  granted''  are  vested  in  Congress.^  The  in- 
evitable conclusion  is  "no  grant,  no  power."  Con- 
gress possesses  only  delegated  powers.  If  an  issue 
arises  under  an  act  of  Congress,  there  must  ever  be 
the  fundamental  question  of  authority  for  the  act. 
This  question  of  authority  once  settled,  the  act,  by 
the  terms  of  the  Constitution  itself,  is  a  part  of  the 
supreme  law.  ^  Rarely  is  an  act  of  Congress  declared 
unconstitutional.  Legislative  experience  avoids 
the  enactment  of  laws  whose  constitutionality  is 
doubtful. 

'  Marbury  v.  Madison,  i  Cranch,  177.     ^  Art.  i.,  i.     i  Art.  vi.,  2. 

18 


The  Law  of  Legislative  Powers       19 

14.  The  general  American  doctrine  is  of  the 
separation  of  delegated  powers,  and  is  commonly- 
set  forth  in  State  constitutions.^  Such  separation 
of  powers  is  not  expressly  declared  in  the  Constitu- 
tion of  the  United  States;  the  principle  here  is  of 
limitation  no  further  than  is  necessary  for  the  pro- 
tection of  each  department  of  government.  Funda- 
mentally it  is  a  question  of  functions.  Whatsoever 
authority  is  necessary  and  proper  for  a  department 
of  government  to  exercise,  belongs  to  that  depart- 
ment. The  separation  of  powers, — legislative, 
executive,  judicial, — is  a  matter  of  agreement  or  con- 
vention made  by  the  sovereign.  Government  is  a 
unit,  not  a  tripartite  machine  or  device.  But  in 
order  to  administer  government,  and  make  it,  as  the 
business  man  would  say,  "a  going  concern, "  it  is 
conceived  and  organized  into  departments.  Sover- 
eignty in  America  vests  legislative  power,  so  far  as 
the  people  of  the  United  States  have  delegated  that 
power, — in  Congress.  The  Constitution  does  not 
specify  all  the  powers  so  delegated.  Such  speci- 
fication is  impossible.  Such  specification  "could 
scarcely  be  embraced  by  the  human  mind";  its  de- 
tails "would  partake  of  the  prolixity  of  a  legal  code."^ 
The  practical  procedure  is  followed  in  the  Constitu- 

'A   typical   formulation  in  Massachusetts,  (1780)  Pt.  I.,    xxx. 
Discussed  in  Taylor  v.  Place,  4  R.  I.,  324  (1856.) 
^  McCulloch  V.  Maryland,  4  Wheaton,  316. 


20        American  Constitutional  Law 

tion  of  selecting  general — that  is,  large,  comprehen- 
sive powers,  or  groups  of  powers,  and  authorizing 
Congress  to  exercise  them.  As  a  matter  of  practical 
government,  had  the  American  people  chosen  to 
declare  in  the  Constitution  that  Congress  shall  have 
power  to  make  all  laws  necessary  and  proper 
for  the  government  of  the  United  States,  the  grant 
would  be  essentially  the  same  as  that  made  by  nam- 
ing the  powers  of  Congress  in  that  instrument.  The 
powers  delegated  to  Congress  are  mentioned  chiefly 
in  the  eighth  section  of  the  first  article  of  the  Con- 
stitution. In  other  parts  of  the  same  article  other 
powers  of  Congress  are  declared,  such  as  the  power  of 
each  House  over  its  members;  to  choose  a  presiding 
officer ;  the  power  of  the  Representatives  to  impeach  ; 
of  the  Senators  to  convict, — or  try  impeachments, 
and  the  respective  powers  of  the  Houses,  under  some 
circumstances ,  to  elect  a  Vice-President ,  or  a  President , 
— and  other  powers,  as  of  proposing  amendments.  ^ 

15.  The  powers  of  Congress,  delegated  to  it  as  a 
whole,  or  to  its  respective  Houses,  and  largely  regula- 
tive of  congressional  membership  and  procedure, 
may  be  described  as  necessary  parliamentary  powers, 
excepting  the  powers  of  the  respective  Houses  in  the 
selection  of  President  and  Vice-President.  Parlia- 
mentary powers  are  functions  essential  to  the 
efficiency  of  a  legislative  body,  and  they  were  worked 

'  Art,  i.,  V. ;  Amendment  XII. 


The  Law  of  Legislative  Powers       21 

out,  largely,  before  and  during  colonial  times.  Such 
parliamentary  functions  were  exercised  by  the 
British  Parliament  and  by  State  Legislatures  prior 
to  the  making  of  the  Constitution.  Indeed,  the 
provisions  respecting  such  powers,  in  the  State  con- 
stitutions from  1776  to  1787,  were  the  immediate 
precedents  for  them  in  the  Constitution  of  the 
United  States.  ^  But  when  we  speak  of  the  legislative 
powers  vested  in  Congress,  we  do  not  mean,  com- 
monly, these  strictly  parliamentary  powers;  rather 
do  we  mean  another  group  or  class  of  powers  included 
under  such  headings  as  "taxation,"  "money," 
"  commerce, "  "  banking, "  "  the  army, "  "  the  navy, " 
"territory,"  and  others  of  notable  rank.  Such 
powers  as  those  indicate  (or  seem  to  indicate),  a 
larger  delegation  of  authority  to  Congress  than  its 
authority  to  regulate  its  membership.  Whatever 
may  be  thought  of  the  relative  rank  of  the  powers  of 
Congress,  all  emanate  from  the  same  source,  "the 
people  of  the  United  States." 

16.  In  determining  the  nature  and  extent  of  these 
powers,  we  are  aided  by  the  Constitution  itself  which 
sets  limitations.     Thus, 

all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States.  ^  The  privilege  of  the  writ  of  habeas 

'"The  Sources  and  Authorship  of  the   Constitution,"  in  the 
author's  Constitutional  History  of  the  United  States,  iii.,  464-515. 
^Art.  i.,  8:  i. 


22         American  Constitutional  Law 

corpus  shall  not  be  suspended  unless  when  in  cases  of 
rebellion  or  invasion  the  public  safety  may  require  it.^ 
No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed.^ 
No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State.  ^  No  preference  shall  be  given  by  any  regulation 
of  commerce  or  revenue  to  the  ports  of  one  State  over 
these  of  another;  nor  shall  vessels  bound  to  or  from  one 
State  be  obliged  to  enter,  clear,  or  pay  duties  in  another.'* 
No  money  shall  be  drawn  from  the  treasury  but  in  con- 
sequence of  appropriations  made  by  law;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures 
of  all  public  money  shall  be  published  from  time  to  time.^ 


In  addition  to  these  limitations,  there  are  limitations 
set  forth  in  the  first  ten,  in  the  thirteenth,  fourteenth, 
and  fifteenth  amendments.  These  amendments,  in 
the  aggregate,  deny  to  Congress  authority  to  vio- 
late what  we  commonly  designate  as  fundamental 
rights.  In  other  words,  the  people  of  the  United 
States  have  given  Congress  no  power  whatever  to 
imperil  these  rights:  they  are  excepted  out  of  the 
government  of  the  United  States.^ 

17.  In  the  several  States  a  like  limitation  of  the 
powers  of  the  Legislature  is  made  in  the  constitutions. 
A  typical  statement  of  this  limitation  may  be  found 
in  the  constitution  of  Pennsylvania,  in  the  last  clause 
of  the  Declaration  of  Rights : 

'  Art.  i.,  9:  2.  ""  Id.,  3.        3  Id.,  5.         "  Id.,  6.  s  Id.,  7. 

*  See  the  Chapters  on  The  Law  of  Limitations,  and  The  Law  of 
Fundamental  Rights. 


The  Law  of  Legislative  Powers       23 

To  guard  against  transgressions  of  the  high  powers  which 
we  ("the  people  of  the  Commonwealth ")  have  delegated, 
we  declare  that  everything  in  this  article  ("the  Declara- 
tion of  Rights")  is  excepted  out  of  the  general  powers  of 
government  and  shall  forever  remain  inviolate.  ^ 

The  discrimination  here  is  between  government  and 
sovereignty  by  means  of  a  clear  limitation  or  denial 
of  powers.  Thus  the  carefully  guarded  fundamental 
rights  are  sovereign,  not  governmental  rights.  That 
the  sovereign  has  the  right  or  power  to  delegate  any 
of  these  fundamental  rights,  or  the  control  over  them 
is  a  question  in  political  science.  That  the  sovereign, 
in  the  modern  republic,  has  not  so  delegated  them, 
is  indisputable.  Yet,  in  19 13  the  people  of  the 
United  States  ratified  the  Sixteenth  Amendment, 
namely,  that  "The  Congress  shall  have  power  to  lay 
and  collect  taxes  on  incomes  from  whatever  source 
derived,  without  apportionment  among  the  several 
States  and  without  regard  to  any  census  or  enu- 
meration. "  *  This  amendment  more  nearly  identifies 
government  with  sovereignty  than  any  other  in  the 
Constitution.  It  removes  limitations  on  the  power 
of  Congress  with  respect  to  what  is  commonly  called 
"direct  taxation."  It  makes  Congress  practically 
sovereign  in  its  power  to  impose  such  taxation  and  to 
collect  such  taxes.     It  does  not  require  that  direct 

'  Pennsylvania,  1873,  Art.  i.,  26. 
'  Thus  annulling  Art.  i.,  2  : 3. 


24        American  Constitutional  Law 

taxes,  like  indirect  taxes,  shall  be  "uniform  through- 
out the  United  States. "  It  is  the  first  departure  in 
America  from  the  doctrine  of  limited  government.* 
1 8.  Of  the  powers  delegated  to  Congress  by  the 
American  people  it  may  be  said  that,  save  as  excepted 
by  the  silence  of  the  Constitution,  or  by  posi- 
tive limitation,  they  are  universal  and  affirmative. 
Their  extent  as  well  as  their  nature  are  made  known 
by  interpretation, — that  is,  through  the  judiciary.* 
Judicial  interpretation  must  be  distinguished  from 
economic,  industrial,  political,  or  even  moral  inter- 
pretation. The  Constitution  provides  only  for 
judicial  interpretation.  ^  The  American  people  have 
vested  legislative  powers  in  Congress,  and  the  exer- 
cise of  them  by  Congress  must  be  measured  by  the 
terms  of  the  grant.''  Thus  far  the  supreme  test  of 
the  constitutional  exercise  of  these  powers  is  to  com- 
pare the  particular  act  of  Congress  with  the  Con- 
stitution.  Shall  the  act  overrule  the  Constitution,  or 

^  It  will  be  profitable  to  compare  this  amendment  with  the  doc- 
trine laid  down  in  Marbury  v.  Madison,  i  Cranch,  137.  See  also 
The  Reconciliation  of  Government  and  Liberty,  J.  W.  Burgess  (19 15). 

*  The  fundamental  principle  of  judicial  interpretation  is  laid  down 
in  Marbury  :;.  Madison;  the  principle  is  examined  in  the  Chapter  on 
The  Law  of  Judicial  Power. 

i  Art.  iii. 

<This  point  is  elaborated  and  examined  by  the  Supreme  Court 
in  the  decision  declaring  the  Civil  Rights  Bill  of  April  9,  1866,  un- 
constitutional. Civil  Rights  Cases,  109  U.  S.,  3  (1883).  The  doc- 
trine annunciated  is  that  Congress  has  no  power  to  legislate  generally 
upon  subjects,  power  over  wliich  is  reserved  to  the  States  by  the 
Tenth  Amendment. 


The  Law  of  Legislative  Powers       25 

shall  the  Constitution  overrule  the  act?  This  is 
the  final  test  of  congressional  exercise  of  powers 
delegated;  it  is  the  essential  measure  of  federal  legis- 
lation. Practically  it  is  congressional  legislation 
which,  sooner  or  later,  brings  out  clearly, — or  at 
least  as  clearly  as  the  government  of  the  United 
States  can  bring  out, — the  real  nature  of  that  govern- 
ment. Thus  it  is  congressional  legislation  which,  as 
tested  in  the  coiirts  of  law,  brings  into  view  the 
implied  and  inherent  powers  of  the  federal  govern- 
ment; the  relations  of  that  government  with  the 
States,  and  the  powers  of  that  government  as  to 
territories  and  outlying  possessions.^  So,  too,  it  is 
congressional  legislation  that  determines  the  objects 
and  the  extent  of  taxation,  both  direct  and  indirect; 
that  regulates  commerce,  coins  money,  and  fixes  its 
value;  affords  equal  protection  to  citizens, 'and 
applies  the  police  power  of  the  United  States.  It  is 
congressional  legislation  which  largely  determines 
the  jurisdiction  of  federal  courts  and  assigns  duties 
and  powers  to  the  President.  *  In  brief,  the  legisla- 
tive powers  vested  in  Congress  reflect  the  convictions 
of  the  people  of  the  United  States  of  the  eighteenth 
century,  when  the  trend  of  political  thought  was  to 
dethrone   kings  and  to   enthrone  legislatures,  with 

'  See  authorities  at  close  of  preceding  Chapter;  also  Chapter  XI. 
'  In  this  connection  as  to  the  President  see  Field  v.  Clark,  143 
U.  S.,  649  (1892). 


26         American  Constitutional  Law 

basic  regard  for  individualism.  A  like  tendency  and 
regard  are  discernible  in  the  State  constitutions  of 
that  period.  The  American  people  did  not  create 
an  omnipotent  Congress,  but  they  created  a  Congress 
having  few  limitations  and  these  they  practically 
nullified  by  the  "sweeping  clause"  which  empowers 
Congress  ' '  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution, "  the  powers 
granted,  "and  all  other  powers  vested  by  this  Con- 
stitution in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof. " ' 

19.  The  phrase  "necessary  and  proper"  practi- 
cally includes  all  the  purposes  of  government,  and 
these  the  Constitution  itself  sets  forth,  as 

To  form  a  more  perfect  Union, 

To  establish  justice. 

To  insure  domestic  tranquillity, 

To  provide  for  the  common  defense. 

To  promote  the  general  welfare. 

To  secure  the  blessings  of  liberty 
to  themselves  ("the  people  of  the  United  States")  and 
their  posterity.^ 

This  exercise  of  power  by  Congress  is  essentially 
political,  and  Congress  alone  is  judge  of  "the  choice 
of  means  and  is  empowered  to  use  any  means  which 

'  Art.  i.,  8  :  18. 

^  Preamble.  As  to  "necessary  and  proper,"  see  United  States  v. 
Fisher,  2  Cranch,  396;  IMcCuUoch  v.  Maryland,  4  Wheaton,  421. 


The  Law  of  Legislative  Powers       2'] 

are  in  fact  conducive  to  the  exercise  of  a  power 
granted  by  the  Constitution."^  This  conclusion  is 
inevitable.  A  legislative  body  coiild  exist  on  no 
other  principle.  Thus  it  follows  that  necessity  is 
supremacy,  in  the  case  of  congressional  legislation. 
To  any  understanding  of  American  constitutional 
law,  comprehension  of  this  principle  is  fundamental. 
20.  May  Congress  abuse  its  powers?  Possibly. 
The  remedy  is  through  popiilar  election  of  members 
of  either  House,  and  repeal  of  the  laws  which — even 
though  their  constitutionality  be  sustained  by  the 
courts,  may,  in  the  judgment  of  the  people,  transcend 
limits  popularly  supposed  to  be  placed  on  Congress. 
Thus  there  are  two  checks  on  congressional  legisla- 
tion: the  courts  of  law  and  the  votes  of  the  people. 
It  follows  that  the  American  sovereign — the  people — 
may  by  their  votes  approve  or  condemn  congressional 
legislation — approval  or  condemnation  resulting  in 
a  continuance  or  a  change  of  membership  of  Congress, 
in  conformity  to  the  relative  strength  of  political 
parties.  It  is  here  that  part  of  the  unwritten  con- 
stitution is  disclosed.  The  written  Constitution 
contains  no  reference  to  political  parties,  but  actual 
government  in  the  United  States  is  by  and  through 
political  parties  who,  as  organized  agencies  of  the 
public  mind,  give  expression,  in  large  measure,  to  the 
unwritten  constitution.     Interpretation  of  the  Con- 

[_/_U.  S.  V.  Fisher,  supra. 


28         American  Constitutional  Law 

stitution,  and  of  course,  of  the  powers  of  Congress, 
is  largely  interpretation  by  political  parties. 

21.  Two  interpretations  of  the  Constitution  have 
evolved  in  America,  the  strict,  or  literal,  commonly 
called  the  Jeffersonian,  and  the  liberal,  or  interpreta- 
tion according  to  the  spirit  of  the  Constitution, 
commonly  called  the  Hamiltonian.  Chief  Justice 
Marshall  was  a  disciple  of  Hamilton  and  enthroned 
his  ideas  in  the  decisions  of  the  Supreme  Court  for 
thirty  years,  and  these  the  first  thirty  years  of  the 
existence  of  the  Court.  Later  judges,  whatever  their 
politics,  have  rarely  departed  from  the  course  of  inter- 
pretation laid  down  by  Marshall.  To  what  extent  the 
political  convictions  of  a  judge  determine  his  judicial 
decisions,  and  to  what  extent  party  doctrines  find 
utterance  in  the  decisions  of  courts  of  law  are  matters 
of  opinion  quite  as  diverse  as  the  men  who  hold  them. 
Yet,  in  order  to  understand  American  constitutional 
law  it  is  necessary  also  to  be  familiar  with  American 
political  and  constitutional  history.  Without  that  his- 
tory, that  law  lacks  background  and  circumstance.  ^ 

22.  In  attempting,  then,  to  understand  the  legis- 
lation of  Congress,  which  is  an  exercise  of  delegated 
powers,  it  is  also  necessary  to  know  the  history  of  the 
times  in  which  it  was  enacted.     Thus  the  first  ten 

*  The  great  opinions  interpretative  of  the  Constitution  have  each 
their  historical  setting.  Illustration  of  this  is  given  in  the  annotated 
editions  of  Marshall's  decisions,  e.  g.,  J.  P.  Cotton's  edition,  2  vols. 
1905. 


The  Law  of  Legislative  Powers       29 

amendments  were  added  in  response  to  a  quite 
unanimous  demand  of  the  American  people  for  what 
they  considered  at  the  time,  1789,  an  adequate  pro- 
tection of  their  fundamental  rights.  The  Eleventh 
Amendment  of  1798  grew  out  of  the  unwillingness 
of  the  people  that  a  State  should  be  made  defendant 
in  a  federal  court  at  the  suit  of  a  citizen  of  another 
State;  therefore  federal  jurisdiction  in  such  cases 
was  denied.  The  Twelfth  Amendment  of  1804  was 
added  to  remedy  a  defect  in  the  Constitution  in  the 
method  and  procedure  of  choosing  the  President  and 
the  Vice-President.  The  Thirteenth,  Fourteenth, 
and  Fifteenth  Amendments,  of  1865,  1868,  and  1870, 
were  added  because  of  the  negro  race.  The  Sixteenth 
and  Seventeenth  Amendments,  of  1913,  were  added 
after  long  agitation  over  direct  taxation  and  the 
popular  election  of  senators  of  the  United  States,  the 
one  essentially  an  economic,  the  other,  a  political 
question.  The  history  of  the  times  records  how  these 
amendments  were  brought  about.  So  too  does  that 
history  largely  explain  the  legislation  enacted  by 
Congress  by  authority  of  these  amendments.^ 
23.     The  essential  fact  as  to  the  powers  of  Congress 

'  For  a  detailed  history  of  the  first  fifteen  amendments  see  the 
author's  Constitutional  History  of  the  United  States;  the  social  and 
political  history  from  1789  to  1870  are  related,  respectively,  by 
John  Bach  McMaster  in  his  History  of  the  People  of  the  United 
States,  and  by  James  Schouler  in  his  History  of  the  United  States. 
J.  F.  Rhodes  in  his  History  of  the  United  States  from  the  Compromise 
of  1850,  7  vols.  (1850-1877),  gives   the   history   of   congressional 


30        American  Constitutional  Law 

is  of  their  limitation.  Turning  to  the  Constitution 
itself,  one  will  find  that  it  devotes  nearly  three  times 
as  much  matter  to  legislative  as  to  executive  power; 
and  nearly  eight  times  as  much  matter  to  legis- 
lative as  to  judicial  power.  Doubtless  this  spatial 
distribution  of  powers  (or  limitation  of  powers)  tells 
the  whole  story.  Government  is  largely  an  affair 
of  legislation.  Essentially,  government  is  the  public 
business,  controlled  and  administered  for  public  or 
general  purposes.  Government,  in  a  republic,  may  be 
said  to  express  itself  in  laws.  So  important  is  this 
expression  of  the  will  of  the  sovereign,  constitutional 
law  consists  almost  wholly  of  the  interpretation  of  leg- 
islation. This  means  that  the  principles  of  govern- 
ment are  to  be  learned  chiefly  from  the  judicial  decisions 
in  particular  cases ;  and  this  again  means  that  the  par- 
ticular law  having  in  due  course  come  before  the  tri- 
bunal, that  law,  when  tested  by  the  supreme  law  of  the 
land  is  sustained,  or  is  declared  to  be  without  authority, 
— hence  it  is  unconstitutional.  In  the  final  test,  all 
legislation  of  Congress  must  stand  the  strain  of  this 
question:  By  what  authority  is  this  law  made?  We 
come  then,  sooner  or  later,  in  congressional  legislation, 
to  the  supreme  law  of  the  land  and  to  sovereignty  in 
America, — "We,  the  people  of  the  United  States." 

legislation  and  of  judicial  interpretation  during  the  period.  Much 
of  the  history  relevant  to  the  great  decisions  of  the  Court  is  given  in 
the  decisions.  7 


The  Law  of  Legislative  Powers      31 

24.  It  is  a  presumption  of  law,  necessary  in  the 
conduct  of  government,  that  all  acts  of  Congress 
are  constitutional  until  pronounced  unconstitutional 
by  a  competent  judicial  tribunal.  An  issue  arising 
between  parties  involves  a  law.  In  deciding  the 
issue  the  tribunal  decides  as  to  the  constitutionality 
of  the  law,  provided  its  constitutionality  forms  part 
of  the  issue.  Unless  the  issue  of  the  constitutionality 
arises  and  is  before  the  tribunal,  that  body  can  make 
no  decision  respecting  the  constitutionality  of  the 
law.  Thus  whether  or  not  the  powers  exercised  by 
Congress,  as  expressed  in  a  piece  of  legislation — ex- 
ceed the  powers  granted  to  it  by  the  Constitution  is 
a  question  which  Congress  itself  is  powerless  to  decide. 
The  Constitution  itself  does  not  so  declare;  on  the 
other  hand  it  does  not  provide  that  Congress  shall 
be  the  final  judge  of  its  own  powers.  The  principle 
regulative  of  the  exercise  by  Congress  of  powers 
delegated  to  it  is  laid  down  by  the  Supreme  Court:'' 
"  Let  the  end  be  legitimate,  let  it  be  within  the  scope 
of  the  Constitution,  and  all  means  which  are  appro- 


'  McCulloch  V.  Maryland,  4  Wheaton,  316  (18 19).  Many  later 
decisions  apply  this  principle. 

For  an  examination  of  the  character  and  scope  of  the  Legislative 
Department,  see 

Taylors,  Place,  4  R.  L,  324  (1856);  Dalbyp.  Wolf,  14  Iowa,  228 
(1862);  Stone  V.  City  of  Charleston,  114  Mass.,  214  (1873);  Barmo 
V.  Baltimore,  7Peters,  243  (1833);  Calder  t».  Bull,  3  Dallas,  386  (1798). 

The  powers  of  Congress  over  taxation,  commerce,  the  currency, 


32        American  Constitutional  Law 

priate,  which  are  plainly  adapted  to  that  end,  which 
are  not  prohibited,  but  consist  with  the  letter  and 
spirit  of  the  Constitution,  are  constitutional." 


war,  territories,  outlying  possessions,  etc.,  are  particularly  examined 
under  appropriate  headings  in  later  chapters. 

In  addition  to  cases  cited  in  the  present  Chapter,  and  to  the  above, 
and  relating  to  the  powers  of  Congress,  see  Gibbons  v.  Ogden,  9 
Wheaton,  i  (1824);  The  Mayor,  etc.,  of  the  City  of  New  York  v. 
Miln,  II  Peters,  102  (1837);  The  License  Cases,  5  Howard,  504 
(1847);  Sinnot  v.  Davenport,  22  Howard,  227  (1859);  Oilman  v. 
Philadelphia,  3  Wallace,  713  (1865);  Henderson  et  al.  Mayor  of  the 
City  of  New  York,  et  al.  Commissioners  of  Immigration  v.  North 
German  Lloyd,  92  U.  S.,  259  (1875);  Hull  v.  De  Cuir,  95  U.S.,  485 
(1877);  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co., 
96  U.S.,  I  (i877);Countyof  Mobile  i;.  Kimball,  102  U.S.,  691  (1880); 
Williamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S.,  i  (1888). 

The  best  brief  treatise  on  the  legislative  in  America  is  American 
Legislatures  and  Legislative  Methods,  by  Paul  S.  Reinsch,  1 907; 
the  most  exhaustive  and  authoritative  treatise  is  Constitutional 
Limitations,  by  Thomas  M.  Cooley.  The  general  powers  of  Congress 
are  discussed  by  Justice  Story  in  his  Commentaries  on  the  Constitu- 
tion, and  by  Chancellor  Kent  in  his  Commentaries  on  American  Law. 

See  also  the  authorities  cited  in  the  present  work  on  The  Law  of  the 
Judicial  Power. 


CHAPTER  III 

THE  LAW  OF  LEGISLATIVE  POWERS     (ll) 

25.  The  powers  of  Congress,  whether  expressed  or 
impHed,  are  powers  incident  to  sovereignty,  being 
essential  to  the  existence  of  the  government  which 
sovereignty  has  created.  The  principle  is  laid  down 
in  The  Federalist,  that  the  government  of  the  Union 
"must  possess  all  the  means  and  have  a  right  to 
resort  to  all  the  methods  of  executing  the  powers 
with  which  it  is  intrusted."^  The  immediate  com- 
parison here  is  between  the  government  of  the  United 
States  and  those  of  the  States.  The  federal  govern- 
ment must  possess  powers  as  adequate  for  its  pur- 
poses as  are  the  powers  possessed  and  exercised  by 
the  particular  States.  The  principle  is  laid  down 
by  Hamilton  yet  more  explicitly : 

A  government  ought  to  contain  in  itself  every  power 
requisite  to  the  full  accomplishment  of  the  objects  com- 
mitted to  its  care,  and  to  the  complete  execution  of  the 
trusts  for  which  it  is  responsible,  free  from  every  other 

*  No.  xvi. 

3  33 


34        American  Constitutional  Law 

control  but  a  regard  for  the  public  good  and  to  the  sense 
of  the  people.* 


This  principle  applies  to  both  American  govern- 
ments,— that  of  each  State,  and  that  of  the  United 
States.  Each  within  its  own  jurisdiction  is  supreme. 
This  means  that  the  national  government  possesses 
powers  adequate  to  the  existence  and  efficient  oper- 
ation of  such  a  government.  With  this  principle  in 
mind,  the  exercise,  by  Congress,  of  its  powers  becomes 
reasonably  plain.  The  people  of  the  United  States 
are  a  sovereignty ;  they  have  ordained  and  established 
the  Constitution  of  the  United  States.  This  Con- 
stitution is  a  plan  of  republican,  that  is  of  represen- 
tative, government.  The  powers  granted  by  this 
sovereignty  to  this  government  are  adequate  to  the 
ends  and  purposes  of  this  government.  Whence 
follows  all  our  constitutional  law:  for  the  constitu- 
tional law  of  the  States  cannot  vary  essentially  from 
that  of  the  United  States.  The  principle  here  is 
stated  by  Chief  Justice  Marshall:  "The  Constitution, 
when  thus  adopted,  was  of  complete  obligation,  and 
bound  the  State  sovereignties."' 

26.  The  powers  of  Congress  are  derived  through 
this  Constitution  and  are  adequate  to  the  legislative 
needs  of  the  government  thus  created.     Here  again 

»  No.  xxxi. 

'  McCuUoch  V.  Maryland,  4  Wheaton,  316  (1819). 


The  Law  of  Legislative  Powers       35 

applies  the  principle  as  to  proper  legislative  powers: 
"Let  the  end  be  legitimate,  let  it  be  within  the  scope 
of  the  Constitution,  and  all  means  which  are  appro- 
priate, which  are  plainly  adapted  to  that  end,  which 
are  not  prohibited,  but  consist  with  the  letter  and 
spirit  of  the  Constitution,  are  constitutional."  If  this 
principle  be  true  (and  it  lies  at  the  basis  of  govern- 
ment in  America),  it  seems  unnecessary  that  the  Con- 
stitution should  specify,  or  enumerate  the  powers  of 
Congress.  These  which  are  enumerated  may  not  be 
said  to  be  in  any  logical  order.  Doubtless  the  qual- 
ities of  sovereignty  are  equal  qualities — each  essen- 
tial to  the  supreme  end  and  purpose  of  sovereignty — 
which  end  and  purpose  is  to  be  and  to  remain 
sovereignty. 

27.  But  to  Congress  and  to  the  State  Legislatures 
powers  are  granted.  Does  the  grant  of  powers  to 
Congress  extinguish  the  grant  to  the  State  Legisla- 
tures?   Here,  again,  Hamilton  states  the  principle: 

An  entire  consolidation  of  the  States  into  one  complete 
sovereignty  would  imply  an  entire  subordination  of  the 
parts ;  and  whatever  powers  might  remain  in  them,  would 
be  altogether  dependent  on  the  general  will.  But  as  the 
plan  of  the  Convention  ("of  1787")  aims  only  at  a  par- 
tial union  or  consolidation,  the  State  governments  would 
clearly  retain  all  the  rights  of  sovereignty  which  they 
before  had,  and  which  were  not,  by  that  act,  exclusively 
delegated  to  the  United  States.  This  exclusive  dele- 
gation, or  rather,  this  alienation,  of  State  sovereignty, 


36        American  Constitutional  Law 

would  only  exist  in  three  cases:  where  the  Constitution 
in  express  terms  granted  an  exclusive  authority  to  the 
Union;  where  it  granted  in  one  instance  an  authority  to 
the  Union,  and  in  another  prohibited  the  States  from 
exercising  the  like  authority;  and  where  it  granted  an 
authority  to  the  Union,  to  which  a  similar  authority  in 
the  States  would  be  absolutely  and  totally  contradictory 
and  repugnant.  ^ 

The  implication  of  the  extinguishment  of  the 
powers  of  the  State  Legislature  by  the  powers  of 
Congress  can  arise  only  where  exercise  of  State  au- 
thority is  "absolutely  and  totally  contradictory  and 
repugnant  to  the  power  delegated  to  Congress."^ 
Therefore  "where  the  authority  of  the  States  is  taken 
away  by  implication,  they  may  continue  to  act  until 
the  United  States  exercise  their  power,  because  until 
such  exercise  there  can  be  no  incompatibility." ^ 
The  principle  here  laid  down  is  illustrated  by  laws 
fixing  the  standard  of  weights  and  measures;  bank- 
ruptcies; counterfeiting  the  coin  and  securities  of 
the  United  States;  copyrights  and  patent  rights. 
If  Congress  legislates  on  these  subjects,  such  legis- 
lation excludes  State  legislation  in  conflict  with  it. 
In  the  absence  of  congressional  and  in  the  presence  of 
State  legislation,  on  these  (and  some  other  subjects 

^  The  Federalist,  xxxii. 

'  Idem  and  Weaver  v.  Fegely,  29  Pennsylvania  State,  27  (1857). 
J  Moore  i;.  Houston,  3  S.  and  R.  (Pa.),  179,  and  the  cases  cited  in 
Weaver  v.  Fegely. 


The  Law  of  Legislative  Powers       37 

falling  in  the  same  class)  the  respective  State  legisla- 
tion is  supreme  within  the  jurisdiction  of  the  State.  ^ 
Stated  in  a  different  way,  this  principle  of  American 
constitutional  law  would  read, — the  mere  grant  to  the 
federal  government  of  power  over  a  subject  does  not 
necessarily  extinguish  State  authority  over  the  same 
subject.  Thus  the  State  has  pow^r  by  common  law, 
or  by  statute,  to  fix  a  standard  of  weights  and  meas- 
ures. The  issue  here  is  not  one  merely  of  authority 
but  of  relative  authority.  The  exercise  of  authority 
by  Congress  is  not,  by  that  fact,  prohibition  of  exer- 
cise of  authority  by  a  State.  This  exercise  is  radically 
different  from  that  of  legislation  on  coining  money, 
making  treaties,  granting  titles  of  nobility,  issuing 
letters  of  marque  and  reprisal, — or  any  other  subject 
over  which  Congress  has  exclusive,  and  a  State  no 
jurisdiction.  Here  the  question  is  one  of  exclusive, 
or  sole  authority.  Thus,  State  Legislatures  have 
authority  to  pass  bankrupt  or  insolvent  laws,  pro- 
vided there  is  no  act  of  Congress,  on  the  subject,  in 
force  establishing  a  uniform  system  of  bankruptcy 
conflicting  with  the  State  law,  and,  further,  providing 
that  the  State  law  does  not  impair  the  obligation  of 
contracts. '' 

28.     But  State  insolvent  laws  apply  to  contracts 
within  the  State  between  one  of  its  citizens  and  a 

^  See  cases  as  under  preceding  note. 

^  Baldwin  v.  Hale,  i  Wallace,  223  (1863). 


38        American  Constitutional  Law 

citizen  of  another  State,  and  they  do  not  apply  to 
contracts  not  made  within  the  State.  The  principle 
here  is  one  of  jurisdiction:  no  State  has  authority 
outside  its  own  jurisdiction.  Therefore  interstate 
matters  are  beyond  State  jurisdiction  and  are  ex- 
clusively under  the  control  of  Congress.  This  prin- 
ciple is  expressed  judicially:  "Insolvent  laws  of  one 
State  cannot  discharge  the  contracts  of  citizens  of 
other  States  because  they  have  no  extra-territorial 
operation."^ 

29.  Congress  exercises  any  of  its  powers  as  an 
agent  of  its  sovereign,  the  people  of  the  United  States. 
Thesepowers,  like  those  of  the  President,  or  of  the  fed- 
eral courts,  are  expressed  or  implied;  the  government 
of  the  United  States  is  "a  national  government  with 
sovereign  powers, legislative,  executive, and  judicial."* 
Because  this  government  is  a  sovereign  government  it 
possesses  the  choice  of  means  to  make  its  sovereignty 
real.  Hence  it  possesses  power  to  pay  the  debts  of 
the  United  States,  to  borrow  money,  to  incorporate 
banks,  to  coin  money,  to  make  war,  and  to  do  what- 
ever acts  it  considers  necessary  and  proper,  and  in 
such  manner  as  it  sees  fit, — all  acts  of  sovereignty. 
It  alone  can  determine  what  is  a  legal  tender,  what 
the  value  of  coins,  domestic  or  foreign  (within  its 


'  Baldwin  v.  Hale,  supra. 

*  Juilliard  v.  Greenman,  no  U.  S.,  421  (1884),  citing  and  quoting 
McCuUoch  V.  Maryland. 


The  Law  of  Legislative  Powers       39 

jurisdiction)  and,  in  brief  it  can  do  all  acts  such  "as 
accord  with  the  usage  of  sovereign  governments." 
Thus  the  national  currency  may  be  coin  or  paper,  as 
Congress  shall  regulate.  Whatsoever  Congress  by 
legislation  declares  to  be  a  legal  tender  in  payment  of 
debts  between  individuals  or  corporations  is  thereby 
a  legal  tender,  because  Congress  is  ' '  the  legislatiire  of 
a  sovereign  nation"  and  is  expressly  empowered  by 
the  Constitution  to  enact  laws  of  the  kind.  ^  This 
power  is  commensurate  with  the  jurisdiction  of 
Congress  in  this  matter, — a  power  which  absolutely 
and  totally  excludes  the  power  of  the  several  States. 

30.  As  a  matter  of  constitutional  law,  it  must  be 
admitted  that,  granting  the  national  sovereignty  of 
the  people  of  the  United  States,  it  must  follow  that 
the  legislature  of  this  sovereign  nation  would  possess 
such  power  over  currency  and  coinage.  That  is, 
the  power  would  be  implied  if  it  were  not  expressed. 
It  is  the  office  or  function  of  a  supreme  national 
government  to  legislate  for  national  ends  and 
purposes.  ^ 

But  the  principle  of  national  sovereignty  which 
operates  in  Congressional  legislation  on  money,  cur- 
rency, coinage,  and  legal  tenders,  does  not  nullify 

»Art.  i.,  8  :i,2,  5. 

^  Distinctions  as  to  United  States  notes,  coin,  currency,  legal 
tender,  etc.,  are  brought  out  in  Juilliard  v.  Greenman,  supra;  Hepburn 
V.  Griswold,  8  Wallace,  603  (1869);  Parker  v.  Davis,  12  Wallace,  79 
C1871) ;  Trebilcock  v.  Wilson,  12  Wallace,  687  (1871). 


40         American  Constitutional  Law 

the  principle  of  contracts.  A  lawful  contract  be- 
tween parties  that  calls  for  payment  of  a  particular 
article  with  a  particular  article,  be  it  silver  coin,  gold 
coin,  national  bank  notes,  treasury  notes,  reserve 
bank  issues,  or  subsidiary  coin,  is  satisfied  only 
when  executed  in  the  terms  of  the  contract.  The 
obligation  of  the  contract  would  be  impaired  if  it 
were  executed  otherwise  than  as  the  contract  itself 
sets  forth.  ^ 

3 1 .  Congress  is  not  under  contract  to  coin  money, 
to  pay  the  debts  of  the  United  States,  or  to  borrow 
money  in  any  particular  way.  Duties,  excises,  and 
imports  must  be  uniform  throughout  the  United 
States,  and  this  condition  is  a  fundamental  limita- 
tion. No  limitation  is  placed  by  the  Constitution 
on  the  power  of  Congress  over  the  currency.  This 
power  is  supreme.  It  is  a  power  which,  duly  exer- 
cised, secures  the  existence  of  sovereignty  itself.' 

*  Knox  V.  Lee,  Parker  v.  Davis,  12  Wallace,  554  (1871). 

*  An  account  of  the  struggles  of  political  parties,  and  of  the  suc- 
cessive decisions  of  the  Supreme  Court  as  to  Legal  Tender  Acts  be- 
longs to  the  history  of  the  law  rather  than  to  a  statement  of  the 
essentials  of  present  constitutional  law.  Accounts  of  this  struggle, 
available  in  histories  of  the  United  States,  may  be  compared  with 
Justice  Stephen  J.  Field's  account  in  J.  Norton  Pomeroy's  Some 
Account  of  the  Work  of  Stephen  J.  Field  as  a  Legislator,  State  Judge, 
and  Justice  of  the  Supreme  Court  of  the  United  Slates  (1881),  (Edition 
by  George  C.  Gorham,  1895)  pp.  65-86.  Mr.  Justice  Field's  dissent- 
ing opinions  from  the  decisions  of  the  Supreme  Court  which  sustain 
the  constitutionality  of  the  Acts  are  based  largely  on  his  conception 
of  the  principle  of  the  obligation  of  a  contract  as  contained  in  the 
Constitution  respecting  "gold  and  silver  coin. "    For  the  history  of 


The  Law  of  Legislative  Powers       41 

A  function  of  sovereignty  is  performed  in  the  issu- 
ing of  a  bill  of  credit,  the  sovereign  power  thus  pledg- 
ing its  faith,  and  the  thing  issued  is  designed  to 
circulate  as  money.  The  State,  or  Commonwealth, 
in  the  Union,  is  not  a  sovereign  for  this  purpose,  as 
the  Constitution  provides.*  So  when  a  State  incor- 
porates a  bank,  which  issues  bills  of  credit,  the  act  of 
the  bank  is  not  an  act  of  sovereignty,  and  the  State, 
though  a  stockholder  in  the  bank,  imparts  none  of  its 
sovereignty  to  the  bank.  The  bank  as  a  corporation, 
not  the  State  as  an  incorporator,  is  answerable  for 
the  obligations  of  the  bank.*  To  constitute  a  "bill 
of  credit, "  in  the  meaning  of  the  Constitution,  it  must 
be  issued  by  a  State,  on  the  faith  of  the  State  and  be 
designed  to  circulate  as  money.  ^ 

32.  Power  to  provide  for  the  punishment  of 
counterfeiting  the  securities  and  current  coin  of  the 
United  States  is  specially  delegated  to  Congress,''  but 
it  is  not  denied  to  the  several  States.  The  power  to 
coin  money  belongs  exclusively  to  Congress ^  as  a 
mark  and  necessary  incident  of  sovereignty,   but 

the  Acts,  the  decision  of  the  Court  invaUdating  them  (1869);  the 
increase  of  the  membership  of  the  Court  (1870);  the  reversal  of  the 
earUer  decisions  (1871),  and  the  final  decision  in  Juilliard  v.  Green- 
man  (1883),  consult  Rhodes,  vi.,  268,  270-273,  and  Note. 
'  Art.  i.,  10  :  i. 

*  Briscoe  V.  Bank  of  Kentucky,  1 1  Peters,  257  (1837). 

»  Darrington  v.  The  Bank  of  Alabama,  13;  Howard,  12  Briscoe  v. 
Bank  of  Kentucky,  supra. 

♦  Art.  i.,  8  :6.  '  Id.  5,  10: 1. 


42         American  Constitutional  Law 

counterfeiting  the  coin  constitutes  an  offense  against 
both  the  State  and  the  United  States.  The  uttering 
of  counterfeit  coin  is  a  cheat,  and  the  State  can  pro- 
tect its  citizens  against  fraud  by  exercise  of  its  police 
power.  Such  offenses  fall  strictly  within  State  juris- 
diction. Counterfeiting  debases  the  coin,  throws 
spurious  and  base  metal,  or  false  securities  into  cir- 
culation, and  is  an  offense  against  that  constitutional 
power  which  is  exclusively  authorized  to  create  a 
currency  for  public  uses.  The  offense  is  against  the 
sovereignty  of  the  nation,  and,  being  a  fraud,  it  is 
against  the  sovereignty  of  the  State.  In  either  case 
it  imperils  sovereignty.  ^ 

33 .  The  power  of  Congress  to  establi  sh  post  offices 
and  post  roads  is  not  an  exclusive  power,  for  the 
States  are  not  prohibited  to  legislate  on  the  same 
subject.  But  Congress  has  unlimited  power  over  it 
and  may  designate  what  may  be  included  in  and 
what  may  be  excluded  from  the  mails.  This  exer- 
cise is  doubtless  of  the  police  power.  It  does  not 
follow  that  congressional  establishing  and  regulation 
of  post  offices  and  post  roads  mean  that  Congress 
has  power  to  deal  with  crime  or  immorality  within  a 
State  in  order  to  maintain  that  it  possesses  the  power 
to  forbid  the  use  of  the  mails  in  aid  of  the  perpetra- 
tion of  crime  and  immorality.     So  a  postal  law  of 

'  United  States  v.  Marigold,  9  Howard,  560  (1849);  Fox  v.  Ohio,  5 
Howard,  410.  , 


The  Law  of  Legislative  Powers       43 

Congress  excluding  lottery  tickets  from  the  mail  is 
not  an  abridgment  of  the  freedom  of  the  press. 
Congress,  by  reason  of  the  nature  of  its  functions,  is 
empowered  to  determine  what  shall  and  what  shall 
not  be  carried  in  the  mails,  and  the  right  of  freedom 
of  speech  does  not  give  the  right  to  injure  the  objects 
or  to  defeat  the  purposes  which  government  is  or- 
dained and  established  to  further  and  protect.  ^  But 
the  State,  in  exercise  of  its  police  power,  may  un- 
doubtedly protect  its  citizens  from  injury  springing 
out  of  that  intercourse  known  as  the  mail  service  so 
long  as  it  is  wholly  intrastate, — that  is,  within  its 
jurisdiction. 

34.  Copyrights  and  patent  rights  are  privileges 
granted  by  Congress  for  a  term  of  years  and  are 
strictly  statutory — for  the  United  States  has  no 
common  law.  The  States  may  exercise  their  powers 
in  like  manner,  subject  to  the  essential  condition  that 
the  Constitution  is  the  supreme  law  of  the  land. 
Copyrights  and  patent  rights  are  examples  of  rights 
which  exist  by  act  of  Congress,^  but  the  right  thus 
created  does  not  annul  the  ordinary  police  power  as 
put  forth  in  the  police  regulations  of  a  State.  The 
person  owning  or  controlling  either  copyright  or 
patent  right  is  not  thereby  empowered  to  defy  the 
laws  of  a  State  as  respecting  the  sale  of  the  article  in 

'  In  re  Rapier,  143  U.  S.,  no  (1892);  Battle  v.  U.  S.,  209  U.  S.,  36. 
^  Wheaton  i;.  Peters,  8  Peters,  591  (1834). 


44        American  Constitutional  Law 

which  or  over  which  he  has  the  exclusive  right.  The 
article  itself  may  be  adjudged  injurious  to  the  public 
and,  therefore,  by  police  regulation,  forbidden  to  be 
sold  or  to  be  exposed  for  sale  in  the  State.  The 
patent  right  prevents  others  than  the  inventor  from 
participating  in  the  fruits  of  his  invention,  without 
his  consent;  but  the  exercise  of  the  right  must  be  in 
subordination  to  the  police  regulations  of  the  State, 
otherwise,  "a  person  might  with  as  much  propriety 
claim  a  right  to  commit  murder  with  an  instrument, 
because  he  held  a  patent  for  a  new  and  useful  inven- 
tion. "^  It  may  be  accepted  as  a  principle  that 
"patent  laws  do  not  interfere  with  the  power  of  a 
State  to  pass  laws  for  the  protection  and  security  of 
its  citizens,  in  their  persons  and  property,  or  in  re' 
spect  to  matters  of  internal  polity,  although  such  laws 
may  incidentally  affect  the  profitable  use  or  sale  by  a 
patentee  of  his  inventions."  * 

35.  The  power  of  Congress,  expressly  delegated  to 
it,  "to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offenses  against  the  law 
of  nations, "  is  not  exclusive.     The  States  are    not 

I  Vanini  et  al.  v.  Paine  et  al.  i  Harr.  (Del.)  65,  quoted  in  Patterson 
V.  Kentucky,  97  U.  S.,  501  (187S). 

^  Id.  See  also  Herdic  v.  Roessler,  109  New  York,  127  (1888);  Hill 
and  Co.  Lmtd.  v.  Hoover,  220  U.  S.,  329.  "  Where  a  suit  is  brought  on 
a  contract  of  which  a  patent  is  the  subject  matter,  either  to  enforce 
such  contract,  or  to  annul  it,  the  case  arises  on  the  contn.ct  and  not 
under  the  patent  laws. "  Hartell  v.  Tilghman,  99  U.  S.,  558.  See  also 
Dale  Tile  Mfg.  Co.  v.  Hyatt,  125  U.  S.,  46  (i{ 


The  Law  of  Legislative  Powers      45 

prohibited  from  legislating  on  the  subject.  Offenses 
committed  within  the  jurisdiction  of  a  State  are 
punishable  by  State  laws.  Such  offenses  are  punish- 
able by  common  law.  If  there  is  no  act  of  Congress 
covering  the  offense,  then  the  United  States  has  not 
assumed  jurisdiction.  But  absence  of  a  specific 
mention  or  definition  of  the  offense  does  not  invali- 
date a  claim  of  jurisdiction  when  the  result  of  the 
offense  is  piracy.  Piracy  is  robbery  committed 
within  the  jurisdiction  of  the  admiralty/  but  an 
offense  that  effects  piracy,  though  not  technically 
robbery,  is  piracy.  ^  As  piracy  is  an  offence  against 
the  law  of  nations,  and  not  strictly  against  domestic 
municipal  law,  it  falls  within  the  jurisdiction  of  the 
admiralty — a  jurisdiction  over  which  the  judicial 
power  of  the  United  States  is  expressly  extended 
by  the  Constitution.  ^  This  jurisdiction  is  not  ex- 
clusive as  provided  for  by  the  Constitution.  Practi- 
cally, however,  the  States  do  not  legislate  on  the 
subject,  unless  it  be  to  provide  for  the  execution  of 
their  police  power  over  their  own  waters. 

36.  The  "admiralty  jurisdiction"  of  the  United 
States  is  co-extensive  with  its  authority  over  or  on 
waters,  fresh  or  salt,  including  the  high  seas,  the 
Great  Lakes,  and  rivers  and  streams  commerce  over 
which  it  has  power  to  regulate.    Thus  this  jurisdic- 

'  Rex  V.  Dawson,  5  State  Trials. 

*  U.  S.  V.  Smith,  5  Wheaton,  153  (1820).  J  Art.  iii.,  2:  i. 


46        American  Constitutional  Law 

tion  is  over  the  American  ship  wherever  it  may  be. 
"Offenses  committed  on  vessels  belonging  to  citizens 
of  the  United  States,  within  their  admiralty  jurisdic- 
tion ('  that  is  within  navigable  waters ')  though  out 
of  the  territorial  limits  of  the  United  States,  may  be 
judicially  considered  when  the  vessel  and  parties  are 
brought  within  their  territorial  jurisdiction."^ 

37.  The  war  power  is  possessed  by  Congress 
exclusively,''  for  the  limitation  of  the  States  as  to 
declaring  war  can  be  construed  only  as  an  exclusive 
delegation  of  this  power  to  the  United  States.  The 
exercise  of  this  power  is  a  sovereign  act  and  may  con- 
sist in  a  formal  declaration  of  war,  or  a  formal  recog- 
nition or  declaration  of  a  state  of  war.  War  existing 
by  such  regulation,  the  President,  as  commander-in- 
chief  of  the  army  and  navy,  and  of  the  militia  of  the 
several  States  when  called  into  the  actual  service  of 
the  United  States,  is  bound  by  his  oath  faithfully  to 
execute  his  office — which  is  to  execute  the  laws  of  the 
United  States.  It  is  for  the  President  to  determine 
how  to  execute  his  office;  that  is  a  political,  not  a 
judicial  question.  "  He  must  determine  what  degree 
of  force  the  crisis  demands."  He  must  decide  the 
character  of  the  opposing  forces,  whether  they  are 
belligerents,  or  of  some  other  character.  He  may 
close  ports  or  declare  a  blockade  of  the  enemy.     He 

'  U.  S.  V.  Rodgers,  150  U.  S.,  249  (1893). 

*  Art.  i.,  8  :  1 1 ;  The  Prize  Cases,  2  Black,  635  (1862). 


The  Law  of  Legislative  Powers      47 

possesses  the  whole  executive  power  of  the  United 
States.  Ratification  of  his  acts  though  ex  post  facto 
are  constitutional, — fundamentally  because  sover- 
eignty having  vested  the  executive  office  in  a  Presi- 
dent, and  he  having  performed  its  duties  to  the  best 
of  his  ability,  refusal  to  consider  his  acts  as  con- 
stitutional would  be  repudiation  by  sovereignty  of 
an  act  which  had  been  done  by  its  authority.^ 

38.  The  word  "State"  in  the  Constitution  refers 
to  a  State  of  the  Union.  ^  For  while  the  Constitution 
was  made,  "ordained  and  established  by  the  people 
of  the  United  States  for  themselves,  "^  it  was  made 
for  the  people  of  the  United  States  in  States.  Thus  it 
follows  that  over  a  domain  not  constituting  a  State, 
that  is,  over  a  domain  consisting  of  a  ceded  district, 
or  a  territory,  or  an  outlying  possession.  Congress  has 
sole  jurisdiction.  Only  the  United  States  and  the 
several  States  possess  sovereignty.  No  State,  or  a 
member  of  the  Union,  has  jurisdiction  over  the  dis- 
trict and  there  is  no  other  American  government 
than  Congress  to  exercise  it.  "Territory"  like 
property  by  common  law  must  have  an  owner;  if 
it  is  self -owned  and  self -governed,  it  is  sovereign; 
otherwise  it  is  a  subject  or  possession  of  sovereignty. 

'  Brown  v.  U.  S.,  8  Cranch,  i  lo;  American  Insurance  Co,  v.  Canter, 
I  Peters,  511;  Lamar  ex.  v.  Browne e<a^.,  92  U.  S.,  187;  Mormon 
Church  V.  U.  S.,  136  U.  S.,  i. 

*  Hepburn  v.  EUzey,  2  Cranch,  445  (1804). 

J  Barron  v.  Baltimore,  7  Peters,  243  (1833). 


48        American  Constitutional  Law 

It  follows,  as  to  American  constitutional  law,  that 
subdivisions  of  States  are  wholly  within  State  juris- 
diction: Congress  having  no  jurisdiction  over  coun- 
ties or  cities  other  than  as,  in  a  general  way  over 
matters,  Congressional  legislation  affects  counties 
and  cities  as  parts  of  States  throughout  the  United 
States.  ^  And  unless  a  State  has  ceded  its  jurisdiction 
over  a  district  within  its  borders,  it  has  full  authority 
to  levy  taxes,  to  execute  its  inspection  and  other 
police  laws  and  regulations  within  that  district. 
Thus  Kansas  ceded  the  Ft.  Leavenworth  Military 
Reservation  to  the  United  States  in  1875,  but  the 
deed  of  cession  granted  no  more  than  use  of  the  land 
as  a  military  post ;  the  State,  therefore,  could  levy  and 
collect  taxes  within  this  area,  having  never  parted 
with  the  sovereign  right  to  do  so.  *  And  any  other 
powers  or  rights  of  the  State,  over  this  area,  not  ex- 
plicitly granted  to  the  United  States  by  Kansas  in 
the  deed  of  cession  remain  intact  in  the  State;  its 
original  jurisdiction  as  a  State,  save  as  explicitly 
modified  by  that  deed,  remains. 

39.  The  power  of  Congress  to  govern  territory,  implied 
in  the  right  to  acquire  it,  and  given  to  Congress  in  the 
Constitution,^  to  whatever  other  limitation  it  may  be 
subject,  the  extent  of  which  must  be  decided  as  questions 

'^Metropolitan  R.  R.  Co.  v.  District  of  Columbia,  132  U.  S.,  I 
(1889). 
i  ^  Ft.  Leavenworth  R.  R.  Co,  v.  Lowe,  1 14  U.  S.,  525  (1885). 

»  Art.  iv.,  3. 


The  Law  of  Legislative  Powers      49 

arise,  does  not  require  that  body  to  enact  for  ceded  terri- 
tory, not  made  a  part  of  the  United  States  by  Congres- 
sional action,  a  system  of  laws  which  shall  include  the 
right  of  trial  by  jury,  and  that  the  Constitution  does 
not,  without  legislation,  and  of  its  own  force,  carry  such 
right  to  territory  so  situated.  ^ 

The  principle  laid  down  by  the  Supreme  Court 
recognizes  two  kinds  or  classes  of  ceded  territory: 
one,  "made  a  part  of  the  United  States  by  congres- 
sional action,"  that  is,  incorporated  into  the. United 
States;  the  other,  unincorporated.  While  congres- 
sional authority  over  either  class  is  supreme,  when  the 
Constitution  and  laws  of  the  United  States  are  ex- 
tended by  Congress  over  a  territory,  they  cannot  be 
withdrawn,^  for  if  the  Constitution  could  be  with- 
drawn directly  it  could  be  nullified  indirectly  by  acts 
passed  inconsistent  with  it.  The  Constitution  would 
thus  cease  to  exist  as  such  and  would  become  of  no 
greater  authority  than  an  ordinary  act  of  Congress.  ^ 
The  decision  of  the  Court  as  to  the  power  of  Congress 
over  territory  of  the  United  States  makes  Congress 
absolute  in  the  exercise  of  its  power.  The  Court  does 
enumerate  the  limitations  on  Congress,  in  such  con- 
trol, but  leaves  each  limitation  to  be  determined  as 

'  Dorr  V.  U.  S.,  195  U.  S.,  138  (1904);  Hawaii  v.  Mankichi,  190  U. 
S,,  197  (1903);  Dooley  v.  U.  S.,  183  U.  S.,  151  (1901)  Downes  r. 
Bidwell,  182  U.  S.  (1901);  Rasmussen  v.  U.  S.,  197  U.  S.,  Weems  v. 
U.  S.,  217  U.  S.,  349.     (But  see  dissenting  opinions  in  above  cases.) 

*  Downes  v.  Bidwell,  supra,  and  cases  and  laws  therein  cited  and 
quoted.  J  Idem. 

4 


50        American  Constitutional  Law 

the  issue  involving  it  shall  arise.  ^  The  safeguard 
against  congressional  absolutism  is  thus  expressed  by 
the  Court: 

There  are  certain  principles  of  natural  justice  inherent  in 
the  Anglo-Saxon  character,  which  need  no  expression  in 
constitutions  or  statutes  to  give  them  effect,  or  to  secure 
dependencies  against  legislation  manifestly  hostile  to 
their  real  interests.* 

'  There  are  powerful  dissenting  opinions  in  the  various  Insular 
Cases.  The  chief  objection  to  the  unlimited  control  of  insular  terri- 
tory by  Congress  is  that  Congress  itself,  by  the  Constitution,  pos- 
sesses only  limited  powers.  How  can  a  limited  Congress  exercise 
unlimited  powers  ? 

^  Downes  v.  Bid  well,  supra.  (The  Court  cites,  in  confirmation, 
the  history  of  Congress  and  of  the  British  Parliament.) 


CHAPTER  IV 

THE  LAW  OF  TAXATION 

40.  In  otir  system  of  government  [observes  the  Su- 
preme Court],  it  is  oftentimes  difficult  to  fix  the  true 
boundary  between  the  two  systems,  State  and  federal 
[and,  adopting  the  words  of  Chief  Justice  Marshall,  pro- 
ceeds],— endeavoring  to  fix  this  boundary  upon  the  subject 
of  taxation,  if  we  measure  the  power  of  taxation  residing 
in  a  State  by  the  extent  of  sovereignty  which  the  people 
of  a  single  State  possess,  and  can  confer  on  its  govern- 
ment,— we  have  an  intelligible  standard  applicable  to 
every  case  to  which  the  power  may  be  applied.  We 
have  a  principle  which  leaves  the  power  of  taxing  the 
people  and  property  unimpaired ;  which  leaves  to  a  State 
the  command  of  all  its  resources,  and  which  places  be- 
yond its  reach  all  these  powers  which  are  conferred  by  the 
people  of  the  United  States  on  the  government  of  the 
Union,  and  all  these  means  which  are  given  for  the  pur- 
pose of  carrying  these  powers  into  execution.  We  have 
a  principle  which  is  safe  for  the  States  and  safe  for  the 
Union.  ^  We  are  relieved,  as  we  ought  to  be,  from  clash- 
ing sovereignty. 

'  Bank  of  Commerce  v.  New  York  City,  2  Black,  620  (1862)  quot- 
ing from  McCulloch  v.  Maryland,  4  Wheaton,  431  (1819).  The 
principle  is  laid  down  in  the  decision  that  "the  sovereignty  of  a  State 
extends  to  everything  which  exists  by  its  own  authority,  or  is  intro- 
duced_by  its  permission;  but  it  does  not  extend  to  these  means 

51 


52        American  Constitutional  Law 

It  follows  that  the  powers  and  functions  of  the  two 
governments  can  be  harmonized  "only  by  a  wise  and 
forbearing  application  of  this  principle.  "^ 

41.  A  tax  is  a  burden  or  charge  imposed  by  the 
legislature  on  property  or  persons  to  raise  money  for 
public  purposes. '  The  two  essentials  of  a  good  tax 
are  that  it  is  to  be  laid  for  a  public  purpose  and  by 
authority.  The  exercise  of  the  taxing  power  not 
only  distinguishes  sovereignty  but  also  the  govern- 
ment which  sovereignty  creates  by  delegation  of 
power.  But  the  State  cannot  exercise  taxing  power 
beyond  its  jurisdiction,^  a  limitation  parallel  to  the 
limitation  of  the  sovereignty  of  the  State,  that  is,  a 
version  (however  unphilosophical)  of  the  idea  in  the 


which  are  employed  by  Congress  to  carry  into  execution  powers 
conferred  on  that  body  by  the  people  of  the  United  States."  Id. 
429. 

^  Bank  of  Commerce  v.  New  York  City,  supra. 

'  Loan  Association  v.  Topeka,  20  Wallace,  655  (1874),  quoting 
Cooley  on  Constitutional  Limitations,  479. 

i  P.  R.  Co.  V.  Pennsylvania,  15  Wallace,  300  (1872).  The  con- 
stitutional use  of  the  taxing  power  by  the  United  States  and  by  the 
several  States  is  examined  by  Hamilton  in  The  Federalist,  No.  xxxii., 
— the  classic  contemporaneous  exposition  of  the  taxing  clauses  of 
the  Constitution.  For  a  judicial  examination  of  these  clauses  see 
Transportation  Company  v.  Wheeling,  99  U.  S.,  273  (1878).  The 
idea  held  both  by  Hamilton  and  by  the  Court  is  that  taxation  is  the 
exercise  of  sovereign  power;  that  "all  subjects  over  which  the  sover- 
eign power  of  a  State  extends  are  objects  of  taxation,"  but  that 
"objects  over  which  it  does  not  extend,  as  for  example,  the  means 
and  instruments  of  the  general  government,  are  exempt  from  taxa- 
tion. "  (The  quotation  in  Transportation  Co.  i;.  Wheeling,  from  Mc- 
Culloch  V.  Maryland  is  not  verbally  accurate.) 


The  Law  of  Taxation  53 

phrase  "residuary  sovereignty."*  But  unless  re- 
strained by  the  federal  Constitution  the  power  of 
Congress  as  to  mode,  form,  or  extent  of  taxation  is 
unlimited. 

The  test  here  is  jurisdiction.*  Taxation  is  the 
correlative  of  protection.  As  the  State  cannot  pro- 
tect so  it  cannot  tax  beyond  its  jurisdiction.  ^  Thus 
the  person  or  the  property  must  be  within  the 
jurisdiction  of  the  State  to  bring  either  within  its 
taxing  power.  Tax  laws  can  have  no  extra-territorial 
operation, 4  but  there  is  no  established  limit  of  the 
taxing  power  or  to  the  selection  of  objects  to  which  it 
is  applicable,  s 

42.  A  State  Legislature  may  abuse  this  power,  but 
the  Constitution  of  the  United  States  was  not  in- 
tended to  furnish  a  corrective  for  every  abuse  of 
power  committed  by  the  State  governments.  Relief 
lies  wholly  with  the  electors  within  the  State  who, 
if  the  State  constitution  does  not  afford  security 
against  unjust  taxation  and  unwise  legislation,  can 
both  alter  the  State  constitution  and  elect  other 
legislators. 

So  long  as  the  State  by  its  laws,  prescribing  the  mode  and 

'The  phrase  {Federalist,  No.  Ixii.)  may  be  Hamilton's  or  Madi- 
son's. 

'^  P.  R.  Co.,  V.  Pennsylvania,  15  Wallace,  300. 

*  This  principle  applies  also  in  international  law. 

*  The  principle  is  established  in  McCuUoch  v.  Maryland, 
s  Kirtland  v.  Hotchkiss,  100  U.  S.,  491  (1879). 


54        American  Constitutional  Law 

subjects  of  taxation,  does  not  entrench  upon  the  legiti- 
mate authority  of  the  Union,  or  violate  any  right  recog- 
nized, or  secured  by  the  Constitution  of  the  United  States, 
the  (Supreme)  Court,  as  between  the  State  and  its  citi- 
zens, can  afford  no  relief  against  State  taxation,  however 
unjust,  oppressive,  or  onerous. 

The  discretion  of  the  State, — that  is,  of  the  State 
Legislature,  is  beyond  the  power  of  the  federal 
government,  or  any  of  its  departments,  to  super- 
vise or  control.  ^ 

43.  The  fundamental  idea  in  America  is  that  each 
government — the  State,  the  national — possesses  pow- 
ers and  functions  adequate  to  its  own  ends  and  pur- 
poses. Thus  the  State  has  no  power  to  lay  a  tax  on 
any  constitutional  means  employed  by  the  govern- 
ment of  the  Union  to  execute  its  powers,  otherwise,  by 
taxation  of  such  means  or  agencies, — say  the  mail,  the 
mint,  judicial  process,  patent  rights, — the  States 
might  defeat  all  the  ends  of  the  national  govern- 
ment,— a  design  not  intended  by  the  people  of  the 
United  States.^  But  this  protection  of  government 
is  not  limited  to  the  United  States  by  limiting  the 


»  Kirtland  v.  Hotchkiss,  supra.  Thus,  "  If  the  law  treats  the  mort- 
gagee's interest  in  the  land  as  real  estate  for  his  protection,  it  is  not 
easy  to  see  why  the  law  should  forbid  it  to  be  treated  as  real  escate 
for  the  purpose  of  taxation."  Savings  and  Loan  Society  v.  Mult- 
nomah County,  169  U.  S.,  421  (1898). 

*  McCuUoch  V.  Maryland,  supra,  quoted  in  The  Collector  v.  Day, 
II  Wallace,  113  (1870). 


The  Law  of  Taxation  55 

States ;  it  applies  to  the  States  as  limiting  the  United 
States. 

The  sovereign  powers  vested  in  the  State  governments  by 
their  respective  constitutions,  remain  unaltered  and  un- 
impaired, except  so  far  as  they  were  granted  to  the 
government  of  the  United  States.^  As  the  powers  not 
delegated  were  reserved  to  the  States  respectively,  or 
to  the  people,  the  government  of  the  United  States  can 
claim  no  powers  not  so  delegated,  and  the  powers  actually 
granted  must  be  such  as  are  expressly  given,  or  given  by 
necessary  implication. 

In    our    complex    system,  the    existence   of  the 
States  in  their  separate  and  independent  condition 

is  so  indispensable,  that  without  them  the  general  govern- 
ment itself  would  disappear  from  the  family  of  nations.' 
Whence  the  necessary  conclusion  that  the  means  and 
instrumentalities  employed  for  carrying  on  the  opera- 
tions of  their  governments  (the  State  governments),  for 
preserving  their  existence,  and  fulfilling  the  high  and  re- 
sponsible duties  assigned  to  them  in  the  Constitution, 
should  be  left  free  and  unimpaired,  should  not  be  liable 
to  be  crippled,  much  less  defeated  by  the  taxing  power 
of  another  government,  which  power  acknowledges  no 
limits  but  the  will  of  the  legislative  body  imposing  the 
tax,  and  more  especially,  those  means  and  instrumen- 
talities which  are  the  creation  of  their  sovereign  and  re- 
served rights,  one  of  which  is  the  establishment  of  the 
judicial  department,  and  the  appointing  of  ofi&cers  to 

'The  Collector  v.  Day,  supra.     (The  Court  quotes  the  Tenth 
Amendment,  in  this  connection,  as  the  basis  of  its  decision.) 
""  Idem. 


56        American  Constitutional  Law 

administer  the  laws.  Without  this  power  and  the  exer- 
cise of  it,  no  one  of  the  States,  under  the  form  of  gov- 
ernment guaranteed  by  the  Constitution,  could  long 
preserve  its  existence.  * 

44.  One  of  the  reserved  powers  of  the  States  was 
to  establish  a  judicial  department. 

All  of  the  thirteen  States  were  in  possession  of  this  power, 
and  had  exercised  it  at  the  adoption  of  the  Constitution; 
and  it  is  not  pretended  that  any  grant  of  it  to  the  general 
government  is  found  in  that  instrument.  It  is  therefore 
one  of  the  sovereign  powers  vested  in  the  States  by  their 
constitutions,  which  remained  unaltered  and  unimpaired, 
and  in  respect  to  which  the  State  is  as  independent  of  the 
general  government  as  that  government  is  independ- 
ent of  the  States.  In  respect  to  reserved  powers,  the 
State  is  as  sovereign  and  as  independent  as  the  general 
government.^ 

The  means  and  instrumentalities  employed  by  the 
one  government  to  carry  its  powers  into  operation  are 
as  necessary  to  its  self-preservation  as  the  means  and 
instrumentalities  are  necessary  to  the  other.  Un- 
impaired existence  is  as  essential  to  the  one  as  to  the 
other.  There  is  no  express  provision  in  the  Constitu- 
tion that  prohibits  the  general  government  from 
taxing  the  means  and  instrumentalities  of  the  States, 
or  prohibiting  such  taxation. 

In  both  cases  the  exemption  rests  upon  necessary  implica- 
tion, and  is  upheld  by  the  great  law  of  self-preservation; 

'  The  Collector  v.  Day,  supra.  '  Id. 


The  Law  of  Taxation  57 

as  any  government  whose  means  employed  in  conducting 
its  operations,  if  subject  to  the  control  of  another  and 
distinct  government,  can  exist  only  at  the  mercy  of  that 
government.  ^ 

45.  This  was  the  constitutional  law  of  the  United 
States  as  settled  in  1870,^  the  case  arising  in  Massa- 
chusetts; the  plaintiff  a  judicial  officer  of  that  Com- 
monwealth having  brought  suit  to  recover  from  the 
United  States  Revenue  Collector  the  amount  of  in- 
come tax  exacted  from  him,  it  being  part  of  his  salary 
as  a  judge  in  that  Commonwealth.  The  Supreme 
Court  of  the  United  States  sustained  the  plaintiff 
for  reasons  given  in  the  opinion,  part  of  which  has 
been  quoted.  By  parity  of  reasoning,  as  followed  in 
that  decision,  any  act  of  Congress  imposing  a  tax  on 
the  salary  of  any  State  officer,  if  his  office  is  a  means 
and  instrumentality  employed  by  the  State  to  carry 
its  powers  into  operation  must  be  declared  uncon- 
stitutional. In  1913  the  Constitution  was  amended 
so  that  "The  Congress  shall  have  power  to  lay 
and  collect  taxes  on  incomes  from  whatever  source 
derived,  without  apportionment  among  the  sev- 
eral States,  and  without  regard  to  any  census  or 
enumeration. "  3 

Does  this  amendment  increase  the  taxing  power  of 
Congress  beyond  that  power  as  possessed  prior  to 
1913  and  as  limited  by  the  Supreme  Court  in  its 

*  The  Collector  v.  Day,  supra.        *  Id.        J  Amendment  XVI. 


58         American  Constitutional  Law 

decision  in  the  case  of  The  Collector  v.  Day?  If  any 
officer  of  a  State,  executive,  legislative,  judicial,  or 
administrative,  receives  a  salary,  large  or  small, 
(and  it  forms  part  of  his  income)  is  it  beyond  the 
jurisdiction  of  the  United  States  as  a  taxable  estate, 
despite  the  explicit  power  of  Congress,  in  this  Six- 
teenth Amendment  "to  lay  and  collect  taxes  on  in- 
comes, from  whatever  source  derived?"  Does  the 
amendment  overrule  the  decision  in  The  Collector  v. 
Day?*  Evidently  the  amendment  empowers  Con- 
gress to  levy  an  income  tax  wholly  in  disregard  of  the 
effect  of  the  tax  in  impairing  the  "necessary  means 
and  instrumentalities  of  a  State."  Here  too  the  issue 
is  one  of  jurisdiction.  The  person  taxed  being  within 
the  jurisdiction  of  the  United  States  has  no  redress 
against  that  jurisdiction  more  than  has  a  person, 
taxed  and  being  within  the  jurisdiction  of  a  State, 
redress  against  the  State.  But  can  the  Common- 
wealth of  Massachusetts,  or  any  other  State,  imposing 
an  income  tax,  lay  and  collect  it  from  whatever 
source  derived,  and  that  source  be  the  treasury  of  the 
United  States, — that  income  be  salary  received  by  a 
citizen  of  the  State  who  also  is  a  federal  official,  say 
a  federal  Judge,  or  a  Collector  of  the  Revenue,  or  a 
United  States  Marshal,  or  a  Senator  of  the  United 


'  Compare  the  effect  of  the  Thirteenth  Amendment,  the  Four- 
teenth and  Fifteenth  Amendments  on  the  decision  of  the  Supreme 
Court  in  Scott  v.  Sandford,  19  Howard,  393  (1857). 


The  Law  of  Taxation  59 

States,  or  a  Congressman,  or  the  President  of  the 
United  States?' 

46.  In  the  operations  of  government,  the  dele- 
gation of  authority  by  the  executive,  the  legislative, 
or  the  judiciary  is  rare.  The  constitutional  test, 
in  either  case,  is  purpose  and  authority.  Thus  a 
municipal  corporation  is  a  representative  not  only  of 
the  State,  but  is  a  portion  of  its  governmental  power. 
It  is  one  of  its  creatures,  made  for  a  specific  purpose, 
to  exercise  within  a  limited  sphere  the  powers  of 
the  State.  "The  action  is  no  less  a  portion  of  the 
sovereign  authority  when  it  is  done  through  the 
agency  of  a  town  or  city  corporation.  "=*  Thus  a  tax 
authorized  by  the  State  Legislature,  to  be  imposed  by 
a  municipal  corporation  is  a  good  tax  in  law,  provided 
it  is  for  a  public  purpose.  This  is  not  a  delegation  of 
the  taxing  power,  but  is  the  exercise  of  it  by  the  Legis- 
lature.    The  municipality  itself  has  no  power  to  tax, 

'  To  what  extent  a  salaried  official  of  a  State  is  exempt  from  in- 
clusion of  his  salary  as  income  taxable  under  the  Sixteenth  Amend- 
ment is  as  yet  not  determined  by  judicial  decision.  "The  corporate 
franchises,  the  property,  the  business,  the  income  of  corporations 
created  by  a  State  may  imdoubtedly  be  taxed  by  the  State;  but  in 
imposing  such  taxes  care  should  be  taken  not  to  interfere  with  or 
hamper,  directly  or  by  indirection,  interstate  or  foreign  commerce,  or 
any  other  matter  exclusively  within  the  jvuisdiction  of  the  Federal 
government.  This  is  a  principle  so  often  announced  by  the  courts, 
and  especially  by  this  court  (the  Supreme  Court  of  the  United 
States)  that  it  may  be  received  as  an  axiom  of  our  constitutional 
jurisprudence."  Philadelphia  and  Southern  Steamship  Company 
V.  Pennsylvania,  122  U.  S.,  326  (1887). 

"United  States  v.  R.  R.  Co.,  17  Wallace,  322  (1873). 


6o        American  Constitutional  Law 

or  even  to  be  a  municipality,  save  by  authority  of  the 
State,  usually  by  the  constitution,  vested  in  its  Legis- 
lature. The  amount  of  the  tax,  the  subjects  of 
taxation,  the  method  of  assessment  and  of  collection 
are  wholly  within  the  discretion  of  the  Legislature. 
The  exemption  of  churches,  schools,  colleges,  and 
charitable  institutions  may  or  may  not  be  required 
by  a  State  constitution.  If  this  is  silent  on  the  sub- 
ject, the  question  is  wholly  one  of  legislative  discre- 
tion. A  charitable  institution  has  no  fundamental 
right  to  exemption  from  taxation,  as  a  person  has  a 
fundamental  right  to  "due  process  of  law. "^  The 
principle  of  exemption  from  taxation  is  that  taxation 
of  the  person  or  the  property  tends  to  destroy  the 
powers  or  to  impair  the  efficiency  of  the  State.* 

47.  A  tax  must  not  only  be  laid  by  authority  but 
it  must  be  for  a  public  purpose.  Thus  any  assess- 
ment imposed  upon  persons  or  property  by  the  gov- 
ernment, State  or  federal,  for  the  gain,  emolument, 
or  advantage  of  a  private  person,  or  an  official,  is  un- 


'  See  the  Chapter  on  The  Law  of  Fundamental  Rights,  post. 

'  Wisconsin  Central  R.  R.  Co.  v.  Price  County,  133  U.  S.,  496 
(1890).  As  to  exemptions,  the  decisions  are  conflicting.  Not 
infrequently  notices  may  be  seen  of  exemption  of  manufacturing 
plants,  or  other  industrials,  from  taxation,  if  they  locate  within  a 
community.  Mississippi  in  its  constitution  of  1890  made  such 
exemptions  by  special  ordinance.  Such  exemption  has  been  held 
valid  in  Franklin  Needle  Co.  v.  Franklin,  65  N.  H.,  177;  Florida 
Central  Railway  Co.  v.  Reynolds,  183  U.  S.,  476;  Per  contra,  Brewer 
Brick  Co.  V.  Brewer,  62  Maine,  62. 


The  Law  of  Taxation  6i 

constitutional.  The  purpose  must  be  public,  as  for 
example,  for  schools,  highways,  canals,  public  build- 
ings, markets,  asylums,  jails,  or  to  keep  the  same  in 
repair  and  to  use  them  for  public  purposes.  The  Leg- 
islature cannot  authorize  a  town  or  a  county,  or  any 
subdivision  of  the  State,  to  raise  money  for  other  than 
public  purposes  and  uses.  It  cannot  confer  benefits 
on  individuals,  however  meritorious,  by  taxation.^ 

48.  Taxes,  imposed  under  the  Constitution,  have 
been  classed  as  direct  or  indirect, — the  direct  being 
apportionable  among  the  States  according  to  popu- 
lation; the  indirect  being  uniform  throughout  the 
United  States." 

The  Sixteenth  Amendment  of  191 3  abolishes  the 
limitation  of  apportionment  or  enumeration  in  the 
imposition  and  collection  of  an  income  tax.  The 
Income  Tax  law  of  October  3,  19 13 — the  first  of  the 
kind  enacted  by  Congress  under  the  amendment — 
exempted  incomes  of  $3000,  or  less,  or  $4000,  or  less, 
as  the  person  taxed  may  be  single  or  married.  The 
amount  of  the  exemption  is  fixed  at  the  discretion  of 
Congress.  So  too  is  the  rate  of  taxation  by  duties, 
imposts,  and  excises,  as  well  as  the  inclusion  or  exclu- 
sion of  articles  subject  to  them,  but  Congress  must 

'  Loan  Association  v.  Topeka,  20  Wallace,  655  (1874);  Kingman  v. 
City  of  Brockton,  153  Mass.,  255  (1891);  an  admirable  note  citing 
decisions  as  to  a  good  tax  may  be  found  in  L.  B.  Evans,  Leading 
Cases  on  American  Constitutional  Law  (Ed.  1916),  p.  211. 

*Art.  i.,  2  :3;8  :  i. 


62        American  Constitutional  Law 

make  such  taxes  uniform  throughout  the  United 
States. ' 

The  taxing  power  may  be  used  to  encourage  or  to 
discourage  an  activity,  or  to  destroy  it.  As  thus 
used,  the  exercise  of  the  taxing  power,  whether  by  the 
State  or  by  the  United  States,  may  characterize  the 
policy,  or  administration  of  its  government.  So 
too  if  a  State  engages  in  manufacturing,  or  in  any 
activity  or  occupation  taxable  under  federal  revenue 
laws,  it  is  amenable  in  taxes  like  a  private  person.  * 

'Art.  i.,  8  :  l.  Kentucky  Railroad  Tax  Cases,  115  U.  S.,  321 
(1885);  Kelly  V.  Pittsburgh,  104  U.  S.,  78  (1881);  French  v.  Barber 
Asphalt  Paving  Co.,  181  U.  S.,  324  (1901);  Veazie  Bank  v.  Fenne,  8 
Wallace,  533  (1869);  Corporation  Tax  Cases,  220  U.  S.,  61  r  (191 1). 

''South  Carolina  v.  United  States,  199  U.  S.,  437  (1905).  The 
State  conducted  dispensatories  and  derived  profit  from  them.  It  was 
held  liable  for  internal  revenue.  The  exercise  by  the  State,  as  a  dis- 
penser, was  held  not  to  exempt  it  from  the  operation  of  the  law. 


CHAPTER  V 

THE  LAW  OF   COMMERCE 

49.  The  power  to  regulate  commerce  belongs  to 
sovereignty.  By  the  Constitution  Congress  is  em- 
powered "to  regulate  commerce  with  foreign  nations, 
and  among  the  several  States,  and  with  the  Indian 
tribes."  ^  The  principle  of  this  regulation,  or  of  the 
exercise  of  the  power,  is  essentially  that  of  taxation : 
it  is  a  matter  of  j urisdiction.  ' '  The  power  of  Congress 
to  regulate  commerce, "  observes  Chief  Justice  Mar- 
shall, in  the  first  American  judicial  decision  on  the 
subject,  "comprehends  and  warrants  every  act  of 
national  sovereignty  which  any  other  sovereign 
nation  may  exercise.  "^ 

The  enormous  powers  Congress  wields  through  this 
clause  cannot  be  fully  defined.  The  Supreme  Court 
has  not  defined  them.  Like  sovereignty  itself,  the 
exercise  of  its  essential  powers,  even  when  delegated 
functionally  in  government,  does  not  yield  to  the 
limits  of  definition.     The  decisions  of  the  Supreme 

'Art.  i.,  viii,,  3. 

'Brig  Wilson  v.  U.  S.,  i  Brockenbrough,  437  (1820). 

6.^ 


64        American  Constitutional  Law 

Court  are  not  definitions  of  the  power  over  commerce 
so  much  as  they  are  definitions  of  the  particular 
exercise  of  the  power  of  Congress  within  its  jurisdic- 
tion, with  respect  to  commerce,  by  the  Constitution. ' 
For  the  States  also  have  jurisdiction  over  commerce. 
Our  knowledge  of  the  boundaries  of  these  two  juris- 
dictions arises  from  the  conflict  of  laws  concerning 
them. 

50.  In  defining  national  jurisdiction  and  State 
jurisdiction  over  commerce,  two  propositions  are 
fundamental : 

(i)  The  Constitution  of  the  United  States  is  the 
supreme  law  of  the  land.* 

(2)  It  is  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is.  ^ 

It  should  be  clearly  understood  that  power  to 
regulate  commerce  is  incident  to  sovereignty.  Gov- 
ernment— whatever  its  form — is  a  delegation  of  power 
by  sovereignty,  and  of  necessity  possesses  this  power 
of  regulation.  The  degree  or  extent  of  the  dele- 
gation  of  the  power  to  regulate   commerce   marks 

'  See  decision  of  the  Supreme  Court  sustaining  the  "Webb- 
Kenyon"  Law  decommerciaUzing  (interstate)  intoxicating  liquors, 
Clark  Distilling  Company  v.  W.  Md.  R.  R.  Co.;  Id.  v.  Am.  Ex.  Co. 
and  State  of  W.  Va.  (January  8,  191 7). 

The  power  of  Congress  to  deal  with  the  hours  of  work  and  wages 
of  employees  engaged  in  interstate  commerce  is  examined  in  Wilson 
V.  New  and  Ferris,  Receivers,  Mo.  Ok.,  &  G.  Railway  Co.,  March  19, 
1917.     (Constitutionality  of  the  "Adamson"  law.) 

'  Art.  vi.,  2. 

JMarbury  v.  Madison,  i  Cranch,  177  (1803). 


The  Law  of  Commerce  65 

tinmistakably  the  jurisdiction  of  the  government  ex- 
ercising the  power.  The  analogy  is  in  the  taxing 
power.  In  our  system  of  dual  government — national 
and  State — there  are  two  jurisdictions.  The  respec- 
tive States  have  power  over  commerce ;  the  United 
States  has  power  to  regulate  commerce,^each 
jurisdiction  expressly  or  impliedly  outlined  by  the 
Constitution, 

51.  With  slight  change  in  wording,  the  leading 
decisions  of  the  Supreme  Court  on  the  power  of  the 
United  States  to  lay  and  collect  taxes,  and  its  deci- 
sions on  the  subject  interpretative  of  the  taxing  power 
of  the  States,  apply,  in  principle,  to  their  respective 
powers  over  commerce: 

rf  .  t.  £  \  taxation  ) 

If  we  measure  the  power  of  i  <,        ,  ^.  ,,  V 

(    regulating  commerce    ) 

residing  in  a  State,  by  the  extent  of  sovereignty  which 

the  people  of  a  single  State  possess  and  can  confer  on  its 

government,  we  have  an  intelligent  standard,  applicable 

to  every  case  to  which  the  power  may  be  applied.     We 

have  a  principle  which  leaves  the  power  of  ]  ,,         .    . 

people  and  property  of  the  State  )       .        .     ,       ,  .  , 
f,  t  .u    o^-  4.  '>  /-unimpaired;  which 

the  commerce  of  the  State  )  ^ 

leaves  to  a  State  the  command  of  all  its  resources,  and 

which  places  beyond  its  reach  all  those  powers  which  are 

conferred  by  the  people  of  the  United  States  on  the 

government  of  the  Union,  and  all  those  means  which  are 

given  for  the  purpose  of  carrying  those  powers  into 

execution.     We  have  a  principle  which  is  safe  for  the 


66        American  Constitutional  Law 

States,  and  safe  for  the  Union.  We  are  relieved,  as  we 
ought  to  be,  from  clashing  sovereignty;  from  interfering 
powers.  ^ 

52.  No  evil  contributed  more  to  the  feebleness  of 
the  old  Confederation  than  its  inability  to  regulate 
commerce.  The  mischief  being  great,  the  grant  of 
power  to  correct  the  mischief  was  correspondingly 
great.  This  grant  of  power  to  regulate  commerce 
comprehends  ' '  all  foreign  commerce  and  all  commerce 
among  the  States."  As  inefficiency  was  the  evil, 
the  grant  of  power  was  to  secure  efficiency.  In 
construing  this  grant — the  commerce  clause  of  the 
Constitution — the  large  and  single  purpose  is  so  to 
construe  as  not  to  impair  its  efficiency  and  thus  de- 
feat the  object  of  the  grant.  ^ 

The  commerce  clause  has  become  the  authority 
for  exercising  the  enormous  powers  of  the  national 
government  as  is  illustrated,  possibly,  by  the  exer- 
cise of  power  under  no  other  clause.  This  means 
that  the  United  States  in  exercising  this  delegated 
power  exercises  so  vast  a  power  that  it  seems  to  be 
sovereignty  itself.  Vast  as  this  power  is — and  prac- 
tically it  is  incommensurable — it  is  a  delegated,  not 
an  original  power  of  the  national  government.  The 
scope,  purpose,  and  nature  of  this  national  power  to 
regulate  commerce  are  indicated  by  the  Supreme 

'  McCulloch  V.  Maryland,  4  Wheaton,  430  (1819). 
*  Brown  v.  Maryland,  12  Wheaton,  419  (1827). 


The  Law  of  Commerce  ^^ 

Court  in  its  construction  of  the  commerce  clause. 
Here  as  in  the  exercise  of  the  taxing  power  the  test 
is  jurisdiction.  The  essential  question  is,  What  is 
the  jurisdiction  of  the  United  States,  what  that  of  the 
respective  States  over  commerce? 

53.  Commerce  is  intercourse,^  and  comprehends 
traffic,  navigation,  telegraphic  intercommunication, 
and  consequently,  communication  by  telephone,  wire- 
less, or  signals.* 

The  Constitution  empowers  Congress  to  regulate 
commerce  "among  the  several  States, "  an  expression 
which  excludes  "the  completely  interior  traffic  of  a 
State."  This  completely  internal  commerce  is  re- 
served for  the  State  itself.  To  whatsoever  extent 
the  foreign  or  interstate  commerce  of  the  United 
States  penetrates  a  State,  it  is  subject  to  regulation 
by  the  United  States ;  it  is  carried  on  within  national 
jurisdiction.  The  power  of  Congress  to  regulate 
commerce  within  this  jurisdiction  is  complete  in  itself 
and  knows  no  limitations  other  than  these  prescribed 
in  the  Constitution.  Thus  this  power  to  regulate 
commerce,  though  limited  to  commerce  with  foreign 
nations  and  among  the  States,  and  with  the  Indian 
tribes,  is  plenary  as  to  these  objects,  and  Congress 
in  exercising  this  power  is  commonly  spoken  of  as 

'  Gibbons  v.  Ogden,  9  Wheaton,  i  (1824). 

^  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 

U.  S.,  I  (1877). 


6S        American  Constitutional  Law 

"sovereign."^  It  follows,  that  as  the  Constitution 
is  the  supreme  law  of  the  land,  and  the  Supreme 
Court  has  power  to  say  what  the  law  is — State  laws 
to  regulate  commerce,  in  conflict  with  national  laws, 
are  unconstitutional.  The  essential  issue,  in  such 
conflict,  is  one  of  jurisdiction.  And  here,  the  real 
question  is  whether  the  regulation  of  commerce  by  a 
State  is  essential  to  its  existence  as  a  State,  or  regula- 
tion by  the  United  States  is  essential  to  its  existence 
as  the  United  States.  Such  regulation  by  a  State  is 
known  as  the  exercise  of  the  police  power.  ^ 

But  the  United  States  also  possesses  police  power. 
The  line  of  demarcation  between  the  State  and  the 
national  police  power  follows  closely,  if  not  precisely, 
the  line  of  demarcation  between  State  power  and 
national  power  to  regulate  commerce.^  The  State 
has  power  to  protect  itself, — that  is,  to  guard  its 
people  against  contagious  or  infectious  diseases,  as 
is  exemplified  in  laws  for  the  inspection  of  foods,  for 
forbidding  the  pollution  of  streams,  for  securing  the 
accuracy  of  weights  and  measures,  the  peace  and  good 

»  So  in  Gibbon  v,  Ogden,  supra. 

'  Henderson  v.  Mayor  of  New  York,  92  U.  S.,  259  (1875);  L.  S. 
&  M.  S.  Railway  Co.  v.  Ohio,  173  U.  S.  (1899);  Railroad  Co.  v. 
Husen,  95  U.  S.,  465  (1877);  Brimmer  v.  Rebman,  138  U.  S.,  78 
(1891);  Morgan's  S.  S.  Co.  v.  Louisiana  Board  of  Health,  118  U.  S., 
455  (1886);  Leisy  v.  Hardin,  135  U.  S.,  100  (1890);  Schellenberger 
V.  Pennsylvania,  171  U.  S.,  i  (1898). 

3  The  trend  of  these  respective  lines  is  disclosed  by  the  decisions 
in  the  cases  cited  in  this  Chapter. 


The  Law  of  Commerce  69 

order  of  communities,  the  comfort  of  the  inhabitants, 
— ^and,  in  a  word, — to  exercise  such  authority  as,  were 
no  such  authority  exercised,  the  State  would  cease 
being  the  State. 

54.  The  power  granted  to  Congress  to  regulate 
commerce  is  not  a  power  granted  to  the  States;  it 
pertains  to  the  United  States  only.  Therefore  Con- 
gress has  no  power  to  regulate  commerce  that  is  not 
"with  foreign  nations,  and  among  the  several  States, 
and  with  the  Indian  tribes."  Practically  this  de- 
prives the  State  of  police  power  over  foreign  and  in- 
terstate commerce,  and  deprives  the  United  States 
of  police  power  over  commerce  that  is,  as  to  the  State, 
completely  internal.  To  what  extent  a  State  can 
protect  itself  from  the  entrance  of  paupers,  insane  or 
diseased  persons,  is  a  question  for  determination  by 
the  Courts.  If  such  persons  are  "commerce"  their 
entrance  is  a  matter  within  the  jurisdiction  of  Con- 
gress. But  the  welfare  of  the  people  of  the  United 
States  is  essentially  the  welfare  of  the  people  of  the 
States,  and  Congress,  in  considering  that  welfare, 
avoids  possible  conflict  with  State  legislation.  Thus 
the  immigration  laws — all  of  which  are  national — 
include,  or  seek  to  include,  these  provisions  for 
inspection  which  a  State  would  prescribe,  in  the 
exercise  of  its  police  power  for  the  health,  safety, 
and  general  welfare  of  its  own  citizens.  But  here, 
too,  a  dominant  principle  prevails ; 


70        American  Constitutional  Law 

The  government  of  the  United  States,  within  the  scope  of 
its  powers,  operates  upon  every  foot  of  territory  under  its 
jurisdiction.  It  legislates  for  the  whole  nation,  and  is 
not  embarrassed  by  State  lines.  Its  peculiar  duty  is  to 
protect  one  part  of  the  country  from  encroachments  by 
another  upon  the  national  rights  which  belong  to  all.  * 

Tested  by  this  principle,  any  State  laws  conflicting 
with  national  immigration  laws  are  unconstitutional. 
55.  The  power  to  regulate  commerce  among  the 
several  States  extends  to  commercial  highways  and 
to  agencies  employed  in  such  commerce.  Thus 
waterways  capable  of  navigation  and  the  free  and 
unobstructed  use  of  them  are  subjects  of  congres- 
sional legislation  under  the  commerce  clause.  From 
this  it  follows  that  Congress  legislates  concerning 
these  waterways,  their  protection,  their  dredging, 
the  bridges  that  cross  them,  the  boats  that  navigate 
them,  the  form,  size,  construction,  command,  and 
equipment  of  these  boats,  the  inspection  of  boilers, 
the  licensing  of  officers, — indeed,  concerning  naviga- 
tion in  its  broadest  application  under  the  commerce 

'  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 
U.  S.,  I  (1877).  The  important  word  here  is  "jurisdiction." 
"To  bring  the  transportation  within  the  control  of  the  State,  as  part 
of  its  domestic  commerce,  the  subject  transported  must  be  within  the 
entire  voyage  under  the  exclusive  jurisdiction  of  the  State. "  Hanley 
V.  Kansas  City  Southern  Railroad  Co.,  187  U.  S.,  617  (1903).  The 
Immigration  Law  (February  20,  1897,  amended  March  26,  1910), 
contains  the  protective  features  the  State  would  demand  through 
exercise  of  its  police  power.  So  too  the  Federal  ^^leat  Inspection 
Act  (March  4,  1907). 


The  Law  of  Commerce  71 

clause.  Vessels  engaged  in  such  commerce  are  de- 
scribed as  "the  public  property  of  the  nation,  and 
subject  to  all  the  requisite  legislation  of  Congress. "  ^ 

56.  In  like  manner,  the  national  power  to  regulate 
commerce  extends  over  interstate  commerce  when 
carried  on  by  land  transportation.  Thus  cars  on 
railroads  used  in  interstate  commerce  must  be 
equipped  with  automatic  couplers  and  continuous 
brakes,  and  locomotives  with  driving-wheel  brakes.^ 

To  what  length  this  regulation  of  commerce  may 
be  carried  by  Congress  is  unknown,  nor  can  it  be 
determined  in  advance.  The  limitations,  if  any,  are 
of  expediency.  3  Thus  in  exercise  of  this  vast  power 
Congress  may  regulate  hours  of  labor,  wages,  selec- 
tion and  use  of  material  in  construction  of  vehicles 
engaged  in  such  commerce;  the  education,  training, 
and  conduct  of  persons  engaged  in  handling  such 
commerce;  the  age  of  employment;  and  physical 
equipment  for  the  welfare  of  employees,  as  well  as 
tariff  rates  and  other  incidents.  '♦ 

'  The  Daniel  Ball,  lo  Wallace,  557  (1870). 

»  Act  of  Congress,  March  2,  1893. 

J  "The  insurance  business  does  not  constitute  interstate  com- 
merce." Paul  y.  Virginia,  8  Wallace,  168  (1868).  But  the  power 
to  regulate  commerce  doubtless  includes  legislation  placing  common 
carriers  engaged  in  interstate  commerce  under  such  federal  control 
as  to  constitute  federal  ownership  of  railroads,  telegraph  and  tele- 
phone lines,  steamships,  sailing  vessels,  etc.,  etc.  Such  ownership  is 
illustrated  in  France,  Germany,  Italy,  Russia,  and  in  other  countries. 

-i  The  Sherman  Anti-Trust  Law  of  July  2,  1890,  and  decisions  of  the 
Supreme  Court  concerning  it,  are  illustrations. 


72        American  Constitutional  Law 

57.  But  in  the  exercise  of  this  power  to  regulate 
commerce  Congress  has  legislated  "to  protect  trade 
and  commerce  against  unlawful  restraints  and 
monopolies."^  Individuals,  or  corporations  under 
State  laws,  engaged  in  business,  in  so  far  as  they  are 
contracts,  combinations  in  the  form  of  trusts,  or 
otherwise,  or  conspiracies  in  restraint  of  trade  or 
commerce  among  the  several  States  are  illegal.  The 
test  here  is,  Are  such  combinations  in  restraint  of 
commerce  among  the  several  States,  or  with  foreign 
nations,  or  with  the  Indian  tribes?  If  any  such  com- 
bination be  in  restraint  of  commerce  completely 
internal  in  a  State,  it  does  not  fall  within  the  juris- 
diction of  the  United  States.  If  illegal,  it  is  illegal 
by  State  laws.  ^  Thus  a  combination  that  is  engaged 
in  manufacturing  is  within  the  jurisdiction  of  the 
police  power  of  the  State,  not  within  the  jurisdiction 
given  by  the  commerce  clause  of  the  Constitution.  ^ 
The  regulation  of  manufactures  is  not  the  regulation 
of  commerce.  A  monopoly  of  manufacturing  is  not 
necessarily  a  monopoly  of  commerce  among  the 
several  States.  In  other  words,  manufacturing  is 
not  commerce.  The  Constitution  does  not  give 
Congress  power  to  regulate  manufactures.     How- 

» See  the  Hours  of  Service  Act  (March  4,  1907) ;  the  Adamson  Act 
(1916),  and  other  acts  indicative  of  the  trend  in  the  congressional 
exercise  of  the  power. 

»  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.,  I  (1895). 

•Art.  i.,  8:3. 


The  Law  of  Commerce  73 

ever,  as  soon  as  the  article  manufactured  becomes 
an  article  of  commerce  among  the  several  States, 
then  it  is  subject  to  regulation  by  Congress. 

58.  As  soon  as  the  article  is  manufactured  it  is 
subject  to  the  law  of  the  State ;  the  moment  the  article 
commences  its  final  movement  from  the  State  of  its 
origin,  that  moment  it  is  an  article  of  commerce  as 
that  word  is  used  in  the  Constitution,  and  is  within 
the  jurisdiction  of  Congress.  ^ 

Manufacture  is  transformation, — the  fashioning  of  raw 
materials  into  a  change  of  form  for  use.  The  functions 
of  commerce  are  different.  The  buying  and  selling  and 
the  transportation  incidental  thereto  constitute  com- 
merce; and  the  regulation  of  commerce  in  the  constitu- 
tional sense,  embraces  the  regulation  at  least  of  such 
transportation.  If  it  be  held  that  the  term  includes  the 
regulation  of  all  such  manufactures  as  are  intended  to  be 
the  subjects  of  commercial  transactions  in  the  futtue,  it 
is  impossible  to  deny  that  it  would  also  include  all  pro- 
ductive industries  that  contemplate  the  same  thing. 
The  result  would  be  that  Congress  would  be  invested,  to 
the  exclusion  of  the  States,  with  the  power  to  regulate, 
not  only  manufactures,  but  also  agriculture,  horticulture, 
stock-raising,  domestic  fisheries,  mining, — in  short,  every 
branch  of  human  industry.^ 

Assumption  of  power  such  as  this  by  Congress  would 
conflict  with  the  residuary  powers  of  the  States, — 
powers  over  intrastate    commerce,  and  that  vast 

»  Coe  V.  Errol,  Ii6  U.  S.,  525. 
•  Kidd  V.  Pearson,  128  U.  S.,  i. 


74        American  Constitutional  Law 

authority  possessed  by  the  States  and  known  as  their 
poHce  powers.  Were  such  authority  possessed  and 
exercised  by  Congress,  the  State  governments  would 
be  paralyzed  and  between  the  States  and  the  United 
States  there  would  be  endless  conflict. 

59.  It  is  not  the  delegation  to  Congress  of  power 
to  regulate  commerce  that  makes  the  exercise  of  a 
similar  power  by  the  State  void ;  it  is  the  actual  exer- 
cise by  Congress  of  its  power  to  regulate  commerce 
that  works  the  prohibition.  In  the  absence  of  con- 
gressional legislation  on  the  subject  the  State  may 
legislate.  Thus  a  State  law  for  the  regulation  of 
pilots  and  pilotage,  in  the  absence  of  Federal  law  for 
the  same,  is  valid.*  This  means  that  sovereignty 
acting  through  the  State  government  controls — or 
has  jurisdiction — unless  sovereignty  has  acted  in  the 
matter  through  the  government  of  the  United  States. 
Thus,  where  the  subject,  say  a  bridge,  a  wharf,  or  a 
stream,  over  which  power  may  be  exercised,  is  local  in 
its  nature  and  operation,  or  constitutes  a  mere  aid 
to  commerce,  the  authority  of  the  State  may  be  ex- 
erted for  its  regulation  and  management  until  Con- 
gress interferes  and  supersedes  State  action.^ 

But  a  license  fee  exacted  by  a  State  law,  from  a 
vessel  engaged  in  commerce  is  a  tax  for  the  use  of 


*  Cooley  V.  Board  of  Wardens  of  the  Port  of  Philadelphia,  12  How- 
ard, 299  (1851). 

•  Escanaba  Company  ».  Chicago,  107  U.  S.,  678  (1882). 


The  Law  of  Commerce  75 

navigable  waters  and  not  a  charge  in  the  nature  of 
compensation  for  any  specific  improvement,  or  use 
of  wharves.  It  is  a  burden  on  commerce  and  is  a 
State  regulation  of  commerce  in  conflict  with  the 
power  of  Congress  to  regulate  it  and  therefore  un- 
constitutional. ^  But  the  internal  commerce  of  a 
State,  that  is,  the  commerce  that  is  wholly  confined 
within  its  limits  is  as  much  under  its  control  as  foreign 
or  interstate  commerce  is  under  the  control  of  the 
general  government.  * 

60.  By  the  words  "taxation  of  commerce"  is 
understood  the  taxation  of  the  agency,  means,  in- 
strument, vehicle,  or  article  in  such  a  way  or  with 
such  effect  as  to  control  commerce;  and  by  "control" 
is  understood  any  degree  of  control.  If  the  State 
can  tax  foreign  or  interstate  commerce  lightly,  it  can 
tax  it  heavily,  and  if  heavily,  it  can  so  tax  as  to 
destroy  commerce.  So  long  as  the  article  imported 
remains  in  the  original  form  of  package,  the  property 
of  the  importer,  in  his  warehouse,  it  is  within  the  juris- 
diction of  the  United  States;  but  as  soon  as  it  has 
become  incorporated  and  mixed  with  the  mass  of 
property  in  the  State,  it  is  within  the  jurisdiction  of 
the  State  and  becomes  subject  to  its  taxing  power.  * 

Were  the  State  to  tax  the  importer  as  such,  this 

*  Harman  v.  Chicago,  147  U.  S.,  396  (1893). 

*  Sands  v.  Manistee  River  Improvement  Company,  123  U.  S.,  238. 
3  Brown  v.  Maryland,  12  Wheaton,  419  (1827). 


76        American  Constitutional  Law 

would  be  a  tax  on  importation  and  beyond  State 
jurisdiction.  So  too  would  be  any  charges,  imposed 
by  the  State,  on  the  introduction  or  incorporation 
of  the  imported  article  into  and  with  the  mass  of 
property  in  the  State.  The  essential  principle  here 
is  that  the  taxing  power  of  the  State  cannot  reach  and 
restrain  the  action  of  the  national  government  within 
its  proper  sphere.  "It  cannot  interfere  with  any 
regulation  of  commerce."^ 

6i.  The  object  in  delegating  to  Congress  the 
power  to  regulate  commerce — a  delegation  without 
limitations — was  to  insure  uniformity  against  dis- 
criminating State  legislation.  ^  The  large  and  funda- 
mental purposes  of  the  people  of  the  United  States  in 
establishing  a  national  government  are  cited  in  the 
Preamble  to  the  Constitution.  Unless  the  power  to 
regulate  commerce  with  foreign  nations  and  among 
the  several  States  was  delegated  to  Congress,  these 
fundamental  purposes  could  not  be  realized.  ^  It  is 
a  nice  question:  When  has  the  commercial  power  of 
the  United  States  over  a  commodity  ceased  and  the 
power  of  the  State  commenced  ?  The  Supreme  Court 
answers:  The  federal  commercial  power  continues 
until  the  commodity  has  ceased  to  be  the  subject  of 

'Brown  v.  Maryland,  12  Wheaton,  419  (1827). 

'Walton  V.  Missouri,  91  U.  S.,  275  (1875). 

3  The  evil  efifect  of  discriminating  State  legislation,  and  the  like, 
during  the  Articles  of  Confederation,  are  dwelt  on  by  the  Court  in 
Walton  V.  Missouri,  supra. 


The  Law  of  Commerce  77 

discriminating  legislation  by  reason  of  its  foreign 
character.  That  power  protects  it  even  after  it  has 
entered  the  State  from  any  burdens  imposed  by 
reason  of  its  foreign  origin.  ^  Any  article  brought 
into  a  State,  as  an  article  of  commerce,  from  another 
State, — that  is  from  another  political  jurisdiction 
possesses  "foreign  character."  The  principle  in- 
volved here  may  thus  be  stated :  (i)  The  Constitution 
having  given  Congress  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States, 
that  power  is  necessarily  exclusive  whenever  the  sub- 
jects of  it  are  national  in  their  character,  or  admit 
only  of  one  uniform  system,  or  plan  of  regulation. 
(2)  Where  the  power  to  regulate  is  exclusively  in 
Congress,  the  failure  of  Congress  to  make  express 
regulations  indicates  its  will  that  the  subject  shall  be 
left  free  from  any  restrictions  or  impositions;  and 
any  regulation  of  the  subject  by  the  States,  except 
only  in  matters  of  local  concern,  is  repugnant  to  such 
freedom.  (3)  The  only  way  in  which  commerce 
between  the  States  can  be  legitimately  affected  by 
State  laws  is  when,  by  virtue  of  its  police  power, 
and  by  its  jurisdiction  over  persons  and  property 
within  its  limits,  a  State  provides  for  the  security  of 
the  lives,  limbs,  health,  and  comfort  of  persons  and 
the  protection  of  property.  But  these  police  regula- 
tions, affecting  commerce  only  incidentally, — such  as 

'  Walton  V.  Missouri,  supra. 


78         American  Constitutional  Law 

(for  example)  the  establishment  and  regulation  of 
highways,  canals,  railroads,  and  wharves  by  taxation 
as  forming  part  of  the  mass  of  property  within  the 
State, — must  be  strictly  internal  regulations,  not  im- 
posing taxes  on  persons  or  property  passing  through 
the  State,  or  coming  into  it  for  a  temporary  purpose 
and  forming  no  part  of  the  common  mass  of  property 
within  its  jurisdiction.  Any  State  regulation  which 
discriminates  adversely  to  the  persons  or  property 
of  other  States  is  an  unauthorized  interference  with 
the  power  of  Congress  over  the  subject.  ^ 

62.  Interstate  commerce  cannot  be  taxed  by  the 
State  even  though  the  same  amount  of  tax  should  be 
laid  by  the  State  on  commerce  carried  on  wholly 
within  its  limits.  ^  The  right  involved  is  not  a  State 
right.  "To  carry  on  interstate  commerce  is  not  a 
franchise  or  privilege  granted  by  the  State;  it  is  a 
right  which  every  citizen  of  the  United  States  is 
entitled  to  exercise  under  the  Constitution  and  laws 
of  the  United  States.  "^  That  persons  engaged  in 
such  commerce  are  incorporated  under  the  laws  of  a 
State  and  thereby  possess  facilities  for  carrying  on 
their  business  cannot  deprive  them  of  their  funda- 
mental right  as  against  the  State,  but  Congress,  by 
its  power  to  regulate  commerce,  may  prescribe  con- 

'  Robbins  v.  Shelby  County  Taxing    District,   120  U.  S.,  489 
(1887). 
*  Idem. 
» Crutcher  v.  Kentucky,  141  U.  S.,  47  (1891). 


The  Law  of  Commerce  79 

ditions  under  which  their  business  is  carried  on, 
or  by  regulation,  destroy  their  business  entirely.^ 
Thus  a  State  cannot,  by  a  Hcense  tax,  exclude  from 
its  jurisdiction  a  foreign  corporation  engaged  in 
interstate  commerce,  or  impose  any  burdens  upon 
such  commerce  within  its  limits.^  But  it  is  within 
the  police  power  of  a  State  to  protect  the  lives  and 
health  of  its  people,  and  to  protect  property  through 
laws  suppressing  nuisances;  prohibiting  manufac- 
tures injurious  to  the  public  health;  prohibiting  the 
manufacture  and  sale  of  intoxicating  liquors;  pro- 
hibiting lotteries,  gambling,  horse-racing,  or  anything 
else  which  the  Legislature  considers  opposed  to 
the  public  welfare.  ^  A  local  regulation  limiting  the 
speed  of  trains  on  entering  a  town  or  city,  or 
approaching  a  curve  or  a  bridge,  or  requiring  a  train 
to  stop  at  a  particular  place,  comes  within  the  exer- 
cise of  the  police  power  of  the  State. '' 

63.  The  power  of  a  State  over  commerce  being 
exclusive  only  as  to  commerce  strictly  internal  and 
within  its  own  boundaries, — that  is,  within  its  own 

'  As  by  the  act  forbidding  the  transportation  of  lottery  tickets 
through  the  mails. 

'  Crutcher  v.  Kentucky,  141  U.  S.,  47  (1891). 

3  Idem.  Cases  decisive  of  the  poUce  powers  of  a  State  are  numer- 
ous. The  principle  involved  may  be  deduced  from  Railroad  Com- 
pany V.  Huson,  95  U.  S.,  465  (1877) ;  Brimmer  v.  Rebman,  138  U.  S., 
78  (1891);  Morgan's  S.  S.  Company  v.  Louisiana  Board  of  Health, 
118  U.  S.,  455  (1886);  Leisy  v.  Hardin,  135  U.  S.,  100  (1890);  L.  S. 
and  M.  S.  R.  R.  v.  Ohio,  173  U.  S.,  285  (1899). 

^  Crutcher  v.  Kentuckj',  supra. 


8o        American  Constitutional  Law 

jurisdiction, — it  follows  that  "a  State  can  no  more 
regulate  or  impede  commerce  among  the  several 
States  than  it  can  regulate  or  impede  commerce 
with  foreign  nations."^  Taxation,  by  a  State,  of 
goods  coming  into  it  from  another  State,  would 
destroy  freedom  of  trade  within  the  nation,  which 
Congress  has  seen  fit  shall  remain  undisturbed. 
This  freedom  of  trade  is  national  in  character, 
and  interference  with  it,  by  a  State,  would  violate 
a  function  and  defeat  the  purpose  of  nationality: 
that  is,  such  violation  would  prevent  the  people 
of  the  United  States  from  realizing  their  own 
sovereignty. 

64.  An  illustration  of  the  constitutional  use  of  the 
power  of  the  State  over  commerce  is  afforded  by  the 
tax,  in  Texas,  on  telegraph  messages  sent  from  one 
place  to  another  exclusively  within  the  State,  by 
private  parties,  and  not  by  the  agents  of  the  govern- 
ment of  the  United  States.  The  Texas  law  imposing 
this  tax  is  not  in  conflict  with  the  power  of  Congress 
to  regulate  commerce,^  and  therefore  was  not  re- 
pugnant to  the  Constitution  of  the  United  States. 
The  line  of  demarcation  as  to  exercise  of  the  police 
power  by  a  State  is  drawn  "by  the  undoubted  right 
of  the  States  of  the  Union  to  control   their  purely 

»  Brown  v.  Houston,  114  U.  S.,  622  (1885),  in  which  the  cases  are 
cited. 

'  Telegraph  Company  v.  Texas,  105  U.  S.,  460  (1881). 


The  Law  of  Commerce  8i 

internal  affairs,  in  doing  which  they  exercise  powers 
not  surrendered  to  the  general  government. "  ^ 

Many  State  laws  regulating  its  administration  of 
internal  affairs  are  applications  of  its  police  power. 
The  police  power  of  the  State  is  of  right,  and  is 
founded  on  "the  sacred  law  of  self-defense."^  But 
this  sacred  law  applies  strictly  to  the  domain  of  the 
State — to  its  own  jurisdiction.  "It  cannot  invade 
the  domain  of  the  national  government."^  A  State 
inspection  law  is  a  familiar  example  of  the  exercise  of 
its  police  power,  but  such  a  law,  working  obstruction 
of  interstate  commerce,  or  any  limitation  of  it,  though 
such  effect  be  only  incidental,  is  repugnant  to  the 
Constitution.''  Such  repugnancy  is  effected  by  a 
State  law  levying  a  tax  on  tonnage,  and  is  void.^ 
But  a  charge  for  mooring  or  landing  at  a  wharf,  is 
not  a  tax  on  tonnage,  but  a  charge  for  services 
rendered;*^  neither  is  the  tax  a  tonnage  tax  when 
the  State  imposes  a  tax  on  vessels  (even  if  regularly 
engaged  in  interstate  commerce),   the  property  of 

'  Leisy  v.  Hardin,  135  U.  S.,  100  (1890).  An  act  of  the  Legislature, 
or  a  constitutional  provision  prohibiting  the  manufacture  or  sale  of 
intoxicating  Hquors  within  a  State,  is  an  example  of  exercise  of  the 
police  power  by  a  State.  See  also  Rhodes  v.  Iowa,  170  U.  S.,  412 
(1898).  Schellenberger  v.  Pennsylvania,  171  U.  S.,  i  (1898);  and 
cases  cited  supra  touching  State  police  power. 

'  The  Passenger  Cases,  7  Howard,  283. 

3  R.  R.  Co.  V.  Huson,  95  U.  S.,  465  (1877). 

*  Turner  v.  Maryland,  107  U.  S.,  38  (1882). 

s  Inman  S.  S.  Co.  v.  Tinker,  94  U.  S.,  238  (1876). 

6  Packet  Co.  v.  Keokuk,  95  U.  S.,  80  (1877). 
6 


82        American  Constitutional  Law 

persons  residing  within  the  jurisdiction  of  the  State, 
the  vessels  themselves  being  part  of  the  mass  of 
property  within  the  State,  being  moored  for  long 
periods  at  the  wharf  for  repairs  and  being  under 
the  protection  of  the  State.  The  taxing  power  is  a 
distinct  and  separate  power  from  the  power  to 
regulate  commerce.  The  right  of  taxation  in  a  State 
remains  over  every  subject  where  it  existed  before 
the  adoption  of  the  Constitution  with  the  exception 
only  of  prohibitions  expressed  or  implied  in  the 
Constitution. 

The  sovereign  jurisdiction  of  the  State  is  not  limited; 
within  that  jurisdiction  it  is  free  to  tax.  But  the  powers 
to  tax  and  to  prohibit  taxation  are  given  in  the  Con- 
stitution by  separate  clauses,  and  these  powers  are  sepa- 
rate and  distinct  from  the  power  to  regulate  commerce. 
From  this  it  follows  that  the  enrolment  of  a  ship  or  vessel 
in  interstate  commerce  does  not  exempt  its  owner  from 
taxation  for  his  interest  in  it  as  property,  upon  a  valua- 
tion by  State  law,  as  in  the  case  of  other  personal 
property.^ 

65.  There  ever  remains  the  question  of  the  extent 
of  the  power  of  Congress  to  regulate  commerce. 
American  constitutional  law  as  to  commerce  is  largely 
of  what  the  States  may  not  do.  But  the  enormous 
power  of  Congress  to  regulate  commerce,  more  and 
more  as  the  years  pass, — as  the  meaning  of  "national 
jurisdiction"  is  defined  by  the  courts  of  law, — the 

'  Transportation  Co.  v.  Wheeling,  99  U.  S.,  273  (1878). 


The  Law  of  Commerce  83 

definition,  however,  slowly  conforming  to  public 
opinion, — discloses  the  extent  of  the  federal  power 
through  the  commerce  clause.  Doubtless  Congress 
has  made  but  a  beginning  in  its  exercise  of  this 
power.  Thus  it  has  made  lottery  tickets  articles  of 
commerce,  has  excluded  them  from  the  mails,  has 
assumed  plenary  authority  of  the  carriage  of  such 
articles  from  State  to  State,  and,  by  authority  of  the 
commerce  clause  has  practically  destroyed  the  lottery 
business  in  the  United  States.^  The  principle  here 
decided  is  that,  under  the  power  to  regulate  com- 
merce, regulation  may  take  the  form  of  prohibi- 
tion, and  that  the  power  "may  be  exerted  with  the 
effect  of  excluding  particular  articles  from  such 
commerce."^ 

In  this  decision  the  Court  observes,  "that  the  sup- 
pression of  nuisances  injurious  to  public  health  or 
morality  is  among  the  most  important  duties  of 
government,"  and  quotes  an  earlier  decision  as  to 
"the  widespread  pestilence  of  lotteries."  It  might 
seem  that  while  exercising  its  powers  under  the  com- 
merce clause  Congress  was  really  exercising  the  police 
power  of  the  United  States. 

66.  Of  highest  importance  is  the  act  of  Congress 
of  July  2,  1890,  and  later  amendments,  known  as  the 
Anti-Trust  Act,  entitled,  An  "Act  to  Protect  Trade 
and   Commerce   against   Unlawful   Restraints   and 

»  Lottery  Cases,  i88  U.  S.,  321  (1903).  '  Id. 


84         American  Constitutional  Law 

Monopolies."  The  decisions  growing  out  of  this 
act  have  been  made  on  issues  involving  the  particular 
questions  whether  or  not  restraints  and  monopolies 
so-called  were  such  under  the  act  and  conflicted  with 
it.  The  power  of  Congress,  under  the  commerce 
clause  to  prohibit  such  restraints  and  monopolies 
has  not  been  denied.  It  will  be  remembered  that 
power  to  regulate  commerce  is  not  power  to  regulate 
manufactures.  The  purpose  of  the  Anti-Trust  law^ 
is  "to  destroy  the  power  to  place  any  direct  restraint 
on  interstate  trade  or  commerce,  when  by  any  com- 
bination or  conspiracy  formed  by  either  natural  or 
artificial  persons,  such  a  power  has  been  acquired; 
and  the  government  may  intervene  and  demand  re- 
lief as  well  after  the  combination  is  fully  organized 
as  while  it  is  in  process  of  formation.  ^  The  principle 
involved  here  is  as  to  the  power  of  corporations  or- 
ganized under  State  laws  to  restrain  or  to  monopolize 
interstate  commerce.  The  State  has  no  power  to 
create  corporations  with  such  powers,  and  conse- 
quently they  cannot  exercise  them  lawfully.  And 
like  attempts  to  restrain  and  monopolize  interstate 
commerce  made  by  individuals  is  alike  unlawful.' 
67.  So,  too,  where  a  labor  organization  sought  by 
a  boycott  to  prevent  the  manufacture  of  articles  in- 

'  26  Statutes  at  Large,  209. 

^  Northern  Securities  Company  v.  United  States,  193  U.  S.,  197 
(1904). 
3  Beef-Trust  case,  Swift  and  Co.  v.  U.  S.,  196  U.  S.,  375. 


The  Law  of  Commerce  85 

tended  for  interstate  commerce,  and  to  prevent  the 
re-selling  of  these  articles  in  other  States,  the  com- 
bination and  plan  were  held  to  be  restraint  of  com- 
merce and  in  violation  of  the  Anti-Trust  act.  ^  The 
cases  strongly  suggest  that  federal  laws  to  regulate 
commerce  may  be  essentially  police  regulations  as, 
notably,  laws  requiring  safety  appliances  on  rail- 
road trains  and  steamboats;  laws  regulating  hours  of 
labor  and  child  labor;  laws  requiring  arbitration 
of  controversies  between  employers  and  employees 
operating  in  interstate  commerce;  the  pure  food  law; 
the  exclusion  of  lottery  tickets  from  the  mails,  and 
the  like.  The  Constitution  contains  no  clause  ex- 
plicitly delegating  the  police  power  to  the  United 
States,  and  the  exercise  of  police  power  by  Congress 
has  thus  far  been  quite  without  exception  imder  the 
commerce  clause.  Yet  by  parity  of  reasoning,  the 
police  power  may  be  included  imder  the  power  to 
declare  war. 

68.  There  is  such  a  thing  as  the  peace  of  the 
United  States.^  The  enormous  power  of  Congress 
under  the  commerce  clause  has  undoubtedly  pro- 
moted that  peace:  "domestic  tranquillity"  is  one  of 
the  specified  purposes  in  ordaining  and  establishing 
the  Constitution.    As  absence  of  power  to  regulate 

'  Danbury  Hatters*  Case,  Loewe  v.  Lawler,  208  U.  S.,  274;  see  also 
Pullman  Car  Company,  64  Fed.  Reporter,  724. 
^  In  re  Neagle,  135  U.  S.,  i  (i{ 


86         American  Constitutional  Law 

commerce  marked  the  weakness  of  the  Articles  of 
Confederation,  so  the  special  inclusion  of  that  power 
among  those  delegated  to  Congress  marks  the 
strength  of  the  Constitution. 

69.  Within  their  respective  jurisdictions  the 
United  States  and  the  several  States  have  power  to 
regulate  commerce.  The  power  over  commerce,  in 
either  jurisdiction,  is  exercisable  within  the  principle 
of  self-preservation.  Whatsoever  exercise  of  this 
power  is  essential  to  the  existence  of  either  govern- 
ment belongs  to  that  government  and  cannot  be  re- 
pugnant to  the  other,  that  is,  under  the  dual  system 
of  American  constitutional  government.  Simple  as 
this  principle  may  seem,  its  practical  application 
in  defining  the  two  jurisdictions,  or  the  authority  of 
either  government,  involves  all  the  issues  in  American 
constitutional  law,  and  the  decisions  of  the  American 
judiciary  in  cases  arising  under  the  cornmerce  clause 
of  the  Constitution. 

A  notable  instance  of  the  authority  given  by  the 
commerce  clause  is  the  power  of  Congress,  over  the 
transportation  of  the  mails,  to  prevent  "any  unlaw- 
ful and  forcible  interference"  with  them.  "The 
strong  arm  of  the  government  may  be  put  forth  to 
brush  away  all  obstructions  to  the  freedom  of  inter- 
state commerce  or  the  transportation  of  the  mails"; 
"the  United  States  have  a  property  in  the  mails." 
The  contents  of  the  mail-bags — that  is,  matter.  Isw- 


The  Law  of  Commerce  87 

fully  mailable — are  commerce  in  the  sense  in  which 
that  word  is  used  in  the  Constitution. 

Constitutional  provisions  do  not  change,  but  their  oper- 
ation extends  to  new  matters  as  the  modes  of  business 
and  the  habits  of  life  of  the  people  vary  with  each  suc- 
ceeding generation.  The  law  of  the  common  carrier  is 
the  same  to-day  as  when  transportation  on  land  was  by 
coach  and  wagon,  and  on  water  by  canal  boat  and  sailing 
vessel,  yet  in  its  actual  operation  it  touches  and  regulates 
transportation  by  modes  then  unknown,  the  railroad 
train  and  the  steamship.  Just  so  is  it  with  the  grant  to 
the  national  government  of  power  over  interstate  com- 
merce. The  Constitution  has  not  changed.  The  power 
is  the  same.  But  it  operates  to-day  upon  modes  of  in- 
terstate commerce  unknown  to  the  fathers,  and  it  will 
operate  with  equal  force  upon  any  new  modes  of  such 
commerce  which  the  future  may  develop.^ 

Under  the  commerce  clause  Congress 

may  enact  such  legislation  as  shall  declare  void  and  pro- 
hibit the  performance  of  any  contract  between  indi- 
viduals or  corporations  where  the  natin-al  and  direct  effect 
of  such  a  contract  will  be,  when  carried  out,  to  directly, 
and  not  as  a  mere  incident  to  other  and  innocent  purposes 
regulate  to  any  substantial  extent  interstate  commerce. 

And  "interstate"  also  includes  "foreign  commerce."* 
All  the  decisions 

illustrate  the  principle  that  Congress  in  the  exercise  of 
its  paramount  power  may  prevent  the  common  instru- 

'     ^Inre  Debs,  158  U.  S.,  564  (1895). 

*The  Addystone  Pipe  &  Steel  Company  v.  United  States,  175 
U.S.,  211  (1899).  J 


88         American  Constitutional  Law 

mentalities  of  interstate  and  intrastate  commercial  inter- 
course from  being  used  in  their  intrastate  operations  to 
the  injury  of  interstate  commerce.  This  is  not  to  say 
that  Congress  possesses  the  authority  to  regulate  the 
internal  commerce  of  a  State,  as  such,  but  that  it  does 
possess  the  power  to  foster  and  protect  interstate  com- 
merce, and  to  take  all  measures  necessary  or  appropriate 
to  that  end,  although  intrastate  transactions  of  interstate 
carriers  may  thereby  be  controlled.  ^ 

'  The  Shreveport  Case,  (Houston,  East  and  West  Texas  Railway 
Co.  V.  United  States;  Texas  and  Pacific  Railway  Co.  v.  United 
States)  234  U.  S.,  342  (1914). 

Note. — Cases  further  illustrating  prohibition  of  a  business  or 
activity  by  operation  of  laws  passed  under  the  commerce  clause: 
United  States  v.  HoUiday,  3  Wallace,  407  (1866);  Buttfield  ». 
Stranahan,  192  U.  S.,  470  (1904);  U.  S.  v.  Del.  &  Hudson  Ry., 
213  U.  S.,  366   (1909) ;  Hope  v.  U.  S.,  227  U.  S.,  308  (  1913). 

Cases  illustrating  exercise  of  the  power  over  commerce  given 
by  the  clause  and  exercising  jurisdiction  over  commerce  claimed 
to  be  intrastate  but  forming  as  it  were  a  link  in  the  chain  of  interstate 
commerce:  Lord  v.  S.  S.  Co.,  102  U.  S.,  541  (1880);  Wilmington 
Transportation  Co.  v.  California  Railroad  Commission,  236  U.  S., 
151   (1915);  Hartley  v.  Kansas  City  Southern  Ry.,  187  U.  S.,  617 

(1903)- 

It  will  be  well  to  read  the  dissenting  opinions  in  any  of  these 
cases  as  these  usually  emphasize  the  power  of  the  State  over 
commerce. 


CHAPTER  VI 

THE  LAW  OF  CONTRACTS  AND  PROPERTY 

70.  The  supreme  law  of  the  land  provides  that  no 
State  shall  pass  any  law  impairing  the  obligation  of 
contracts.^  A  contract  is  an  agreement  between 
competent  persons  to  do  or  not  to  do  a  certain  thing ; 
the  law  is  part  of  the  contract.*  An  unlawful  con- 
tract cannot  be  made,  for  the  so-called  contract, 
being  unlawful,  has  never  existed  as  a  contract. 
The  limitation  as  to  contracts  in  the  Constitution  is 
on  the  States.  Thus  a  State  can  no  more  impair 
its  own  contracts,  by  legislation,  than  it  can  impair 
the  obligation  of  the  contracts  of  individuals.^  A 
sovereign  State  is  supposed  to  have  a  more  scrupulous 
regard  to  justice,  and  a  higher  morality  than  belongs 
to  the  ordinary  transactions  of  individuals. 

71.  A  State  may  incorporate  a  bank  which,  by 
its  charter,  is  empowered  to  issue,  and  does  issue, 
stock,  bills,  or  notes.     These  are  contracts.     By  its 

»Art.  i.,  10  :  i. 

*  McCrackin  v.  Hay  ward,  2  Howard,  608  (1844). 
sWoodmfE  V.  Trapnall,  10  Howard,  190  (1850). 

89 


90        American  Constitutional  Law 

police  power  the  State  may  repeal  that  section  of 
the  bank's  charter  authorizing  issues  of  notes,  but 
legislation  affecting  the  stock,  or  notes,  so  as  to 
impair  their  obligation  is  unconstitutional.^  The 
question  is  not  one  of  currency  but  of  impairing  the 
obligation  of  a  contract.  A  legislature  may  make 
a  contract  binding  upon  later  legislatures, — as  a  law 
existing  at  the  time  contracts  under  it  are  made,  it 
becomes  part  of  them,  but  a  municipal  act  levying  a 
tax  upon  city  bonds  held  by  non-residents  diminishes 
the  value  of  the  bonds  and  therefore  impairs  the 
obligation  of  a  contract.  ^  For  the  bonds  call  for  a 
certain  interest  payment  at  a  certain  time,  and  a  tax 
upon  them,  and  retaining  the  same  from  payment, 
make  an  entirely  different  contract  from  the  original. 
The  constitutional  provision  against  impairing  con- 
tract obligations  is  a  limitation  on  the  taxing  power 
as  well  as  on  all  legislation — whatever  its  form.  ^ 

72.  But  such  limitation  must  not  be  confused 
with  legitimate  exercise  of  the  police  powers  of  the 
State.  Thus  an  arrangement  determinable  at  the 
will  of  either  party  is  not  a  contract  beyond  control, 
change,  or  cessation  under  the  police  power.  For 
example,  a  bounty  law,  as  for  killing  destructive 
animals,  or  for  the  encouragement  of  manufactures 
(the  boring  of  salt  wells  and  pumping  of  water  from 

^  Woodruflf  V.  Trapnall,  10  Howard,  190  (1850). 

*  Murray  v.  Charleston,  96  U.  S.,  432  (1877).  ^  Idem. 


The  Law  of  Contracts  and  Property  91 

them  for  making  salt),  does  not  involve  the  State  in  a 
contract.  It  is  a  matter  purely  voluntary  on  the 
part  of  those  who  avail  themselves  of  the  opportunity, 
and  the  Legislature  may  or  may  not  continue  the 
law  at  discretion,  as  a  matter  of  public  policy.  * 

73.  The  execution  of  an  office  to  which  a  person 
has  been  lawfully  elected,  or  appointed,  by  the  per- 
formance, by  him,  of  its  duties,  is  a  completed  con- 
tract, with  perfect  obligation  to  pay  for  services 
rendered  at  the  rate  of  compensation  fixed  by  the 
contract,  and  this  obligation  can  no  more  be  im- 
paired by  a  law  of  the  State  than  that  arising  on  a 
promissory  note.  ^ 

74.  The  charters  of  private  charitable  institu- 
tions are  contracts  within  the  letter  of  the  Constitu- 
tion, and  their  obligation  cannot  be  impaired  without 
violating  it.^  But  if  a  charter  to  a  corporation,  for 
example  a  railroad,  or  a  college,  provides  for  possible 
alteration  or  amendment  by  the  Legislature  of  the 
State,  such  power  of  alteration  duly  exercised  by  a 
later  Legislature  is  not  unconstitutional  as  impairing 
the  obligation  of  a  contract.  '• 

75.  The   police   power  of  the  State  extends  to 

'  Salt  Company  v.  East  Saginaw,  13  Wallace,  373  (1871). 

^  Fisk  V.  Jefferson  Police  Jury,  116  U.  S.,  131  (1885). 

3  Trastees  of  Dartmouth  College  v.  Woodward,  4  Wheaton,  518 

(1819). 

■)  Case  of  the  conjunction  of  Washington  and  Jeflferson  Colleges, 
Pennsylvania  College  Cases,  13  Wallace,  190  (1871). 


92        American  Constitutional  Law 

the  protection  of  the  lives,  health,  and  property  of 
citizens,  and  to  the  preservation  of  good  order  and 
the  public  morals,  nor  can  the  Legislature,  by  any 
contract,  divest  itself  of  the  power  to  provide  for 
these  objects. 

They  belong  emphatically  to  that  class  of  objects 
which  demand  the  application  of  the  maxim,  salus 
populi  suprema  lex;  and  they  are  to  be  attained  and 
provided  for  by  such  appropriate  means  as  the  legislative 
discretion  may  devise.  That  discretion  can  no  more 
be  bargained  away  than  the  power  itself.  * 

In  exercise  of  this  police  power  the  Legislature  pro- 
hibits the  manufacture  and  sale  of  malt  liquor. 
Such  manufacture  or  sale  is  not  an  exercise  of  a 
right  by  contract,  and  prohibition  of  the  business  is 
not  legislation  impairing  the  obligation  of  a  contract.  * 
So  too,  a  provision  in  a  State  constitution  forbidding 
lotteries  and  gift  enterprises  within  a  commonwealth, 
and  revoking  lottery  charters  theretofore  granted, 
is  not  a  law  impairing  the  obligation  of  a  contract.  ^ 
The  principle  followed  here  is  expressed  by  the 
Chief  Justice  (Waite) :  "  No  legislature  can  bargain 
away  the  public  health  or  the  public  morals."  Thus 
it  may  be  accepted  as  settled  constitutional  law  that 
the  people  in  their  sovereign  capacity  and  through 

'  Boyd  V.  Alabama,  94  U.  S.,  645. 

*  Beer  Company  v.  Massachusetts,  97  U.  S.,  25  (1877). 

»  Douglas  V.  Kentucky,  168  U.  S.,  488  (1897). 


The  Law  of  Contracts  and  Property  93 

their  properly  constituted  agencies  may  exercise 
powers  as  the  public  good  may  require.*  But 
corporations  and  private  persons  possessing  and 
exercising  rights  and  franchises  vested  in  them  by 
law  and  possessing  property  rights  by  contract  are 
entitled  to  compensation  when,  under  the  State 
power  of  eminent  domain,  such  vested  rights  are 
taken  away.* 

76.  Whether  property  or  employment  possesses 
the  qualities  or  attributes  of  a  public  use  will  largely 
determine  the  character  of  legislative  control  for  the 
purpose  of  safe-guarding  the  public  against  "danger, 
injustice,  and  oppression";  the  police  power  of  the 
State  is  here  paramount.^ 

77.  The  principle  involved  in  the  obligation  of 
contracts  is  clearly  set  forth  by  the  Supreme 
Court: 

In  placing  the  obligation  of  contracts  under  the 
protection  of  the  Constitution,  its  framers  looked  to  the 
essentials  of  the  contract  more  than  to  the  forms  and 
modes  of  proceeding  by  which  it  was  to  be  carried  out 
into  execution;    annulling  State  legislation  which  im- 

'  Douglas  V.  Kentucky,  supra;  New  Orleans  Gas  Co.  ».  Louisiana 
Light  Co.,  115  U.  S.,  650  (1885). 

^  See  the  cases  cited  in  New  Orleans  Gas  Co.  v.  Louisiana,  supra, 
3  Georgia  R.  R.  and  Banking  Co.  v.  Smith,  128  U.  S.,  174  (1888); 
East  Hartford  v.  Hartford  Bridge  Co.,  10  Howard,  511  (1850), 
But  a  judgment  (judicial  decision)  is  not  a  contract  in  the  meaning 
of  the  Constitution.  Morley  v.  L.  S.  &  M.  S.  R.  R.,  146  U.  S.,  162 
(1892). 


94         American  Constitutional  Law 

paired  the  obligation,  it  was  left  to  the  States  to  prescribe 
and  shape  the  remedy  to  enforce  it.  The  obligation  of  a 
contract  consists  in  its  binding  force  on  the  party  who 
makes  it.  This  depends  on  the  laws  in  existence  when 
it  is  made;  these  are  necessarily  referred  to  in  all  contracts 
and  forming  a  part  of  them  as  the  measure  of  the  obliga- 
tion to  perform  them  by  the  one  party,  and  the  right 
acquired  by  the  other.  There  can  be  no  other  standard 
by  which  to  ascertain  the  extent  of  either,  than  that 
which  the  terms  of  the  contract  indicate  according  to 
their  settled  legal  meaning;  when  it  becomes  consiim- 
mated,  the  law  defines  the  duty  and  the  right,  compels 
one  party  to  perform  the  thing  contracted  for,  and  gives 
the  other  a  right  to  enforce  the  performance  by  the 
remedies  then  in  force.  If  any  subsequent  law  affect 
to  diminish  the  duty,  or  to  impair  the  right,  it  necessarily 
bears  on  the  obligation  of  the  contract,  in  favor  of  one 
party,  to  the  injury  of  the  other;  hence,  any  law  which, 
in  its  operation,  amounts  to  a  denial,  or  obstruction, 
of  the  rights  accruing  by  a  contract,  though  professing 
to  act  only  on  the  remedy,  is  directly  obnoxious  to  the 
prohibition  of  the  Constitution.  ^ 

'  McCrackin  v.  Hay  ward,  2  Howard,  608  (1844).  All  legal 
remedies  for  the  enforcement  of  a  contract  belonging  to  it  at  the 
time  and  place  when  and  where  it  is  made  are  a  part  of  its  obligation. 
Any  provision  of  a  State  law  or  constitution  impairing  such  remedies 
are  void.  Gunn  v.  Barry,  15  Wallace,  610  (1872);  Mitchell  v. 
Clark,  no  U.  S.  (1884).  But  the  prohibition,  in  the  Constitution, 
of  any  State  to  make  any  law  impairing  the  obligation  of  contracts 
"did  not  give  to  Congress  power  to  provide  laws  for  the  general 
enforcement  of  contracts;  nor  power  to  invest  the  courts  of  the 
United  States  with  jurisdiction  over  contracts,  so  as  to  enable  parties 
to  sue  upon  them  in  those  courts.  It  did,  however,  give  the  power  to 
provide  remedies  by  which  the  impairment  of  contracts  by  State 
legislation  might  be  counteracted  and  corrected :  and  this  power  was 
exercised."     Civil  Rights  Cases,  109  U.  S.,  3  (1883). 


The  Law  of  Contracts  and  Property  95 

78.  The  prohibition  of  legislation  impairing  the 
obligation  of  contracts  does  not  extend  to  the  United 
States  as  it  does  to  the  States.  Thus  in  the  Legal 
Tender  Cases ^  and  in  sundry  bankruptcy  cases.* 
the  Supreme  Court  has  decided  that  the  exer- 
cise of  the  power  of  Congress  "does  not  depend  upon 
the  incidental  effect  of  its  exercise  on  contracts,  but 
on  the  existence  of  the  power  itself."  This  means 
that  the  United  States  possesses  a  police  power, 
salus  populi  suprema  lex,  in  exercise  of  which  at  the 
discretion  of  Congress,  the  obligation  of  contracts 
must  yield  to  the  higher  obligation  of  the  general 
welfare.  ^ 

79.  It  is  a  fundamental  of  government  in  America 
that  no  person  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law,  nor  shall  private 
property  be  taken  for  public  use  without  compensa- 
tion.'' The  prohibition  and  protection  as  to  due 
process  of  law  extends  both  to  the  United  States 
and  to  the  States.  The  taking  by  a  State  of  the 
private  property  of  a  person, — and  a  corporation  is 
legally  a  person, — without  the  owner's  consent,  for 
the  private  use  of  another  is  not  due  process  of  law,  ^ 

'  Juilliard  v.  Greenman,  no  U.S.,  421  (1884),  and  see  note  supra, 
p.  92. 

^  Consult  Mitchell  v.  Clark,  no  U.  S.,  633  (1884)  from  which  the 
quotation  is  taken. 

5  This  raises  the  whole  question  of  national  sovereignty. 

4  Amendment  V.;  XIV. 

s  Missouri  Pacific  Ry.  v.  Nebraska,  164  U.  S.,  403  (1896). 


96        American  Constitutional  Law 

and  it  violates  the  Fourteenth  Amendment.  A 
State  possesses  exclusive  jurisdiction  and  sovereignty- 
over  persons  and  property  within  its  territory  and 
consequently  may  determine  for  itself  the  civil 
status  and  capacities  of  its  inhabitants ;  may  prescribe 
the  subjects  upon  which  they  may  contract,  and 
regulate  the  manner  and  conditions  upon  which 
property  situated  within  its  territory — or  jurisdic- 
tion— may  be  acquired,  enjoyed,  and  transferred; 
but  no  State  can  exercise  direct  jurisdiction  and 
authority  over  persons  or  property  without  its 
jurisdiction.  The  laws  of  a  State  have  no  operation 
outside  its  territory  "except  so  far  as  is  allowed  by 
comity;  any  exertion  of  authority  by  a  State  beyond 
its  territory  is  a  nullity."  The  sovereign  power  of 
the  State  over  property  within  its  jurisdiction, 
belonging  to  non-residents  is  exercisable  as  over  the 
property  of  residents.  But  the  property  right  of  the 
non-resident  cannot  be  invalidated  save  by  due 
process  of  law,  which  means,  inter  alia,  the  right  of 
the  non-resident  to  appear  personally,  or  by  repre- 
sentative, in  the  courts  of  the  State  to  protect  his 
own  interests.  A  State  law  under  which  a  non- 
resident's property  should  be  taken  without  such 
notice  would  be  unconstitutional  by  the  Fourteenth 
Amendment.  ^ 

'  Permoyer  v.  Neff,  95  U.  S.,  714  (1877) ;  Amdt  v.  Griggs,  134  U.  S., 
316  (1890). 


The  Law  of  Contracts  and  Property  97 

But  the  Fourteenth  Amendment  does  not  deprive 
the  States  of  their  police  power  over  "subjects  within 
their  jurisdiction."  ^ 

80.  The  right  of  eminent  domain  is  essentially 
of  the  police  power,  and  for  State  purposes  is  exclu- 
sively within  the  State.  Each  State  in  the  Union 
regulates  its  domestic  commerce,  contracts,  the 
transmission  of  estates, — real  and  personal — and 
acts  upon  all  internal  matters  which  relate  to  its 
moral  and  political  welfare.  Over  these  subjects  the 
federal  government  has  no  power.  The  acknowl- 
edged police  power  of  a  State  extends  often  to  the 
destruction  of  property.  A  nuisance  may  be  abated.  * 
Thus  a  State  constitution,  or  a  statute  under  it, 
prohibiting  the  manufacture  and  sale  of  intoxicating 
liquors,  except  for  medicinal,  scientific,  and  mechani- 
cal purposes,  does  not  conflict  with  the  clause  of  the 
Fourteenth  Amendment  which  provides  that  "no 
State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  State  deprive  any  person 

'  Cunnius  v.  Reading  School  District,  198  U.  S.,  458  (1905),  sus- 
taining a  Pennsylvania  statute  that  provided  for  administration  upon 
estates  of  persons  presumed  to  be  dead  by  reason  of  long  absence 
from  the  State.  Mattingly  v.  District  of  Columbia,  97  U.  S.,  6S7 
(1878) ;  that  which  a  State  Legislature  may  have  dispensed  with  by  a 
prior  statute  it  may  dispense  with  by  a  subsequent  one;  an  irregu- 
larity or  defect  which  might  be  made  immaterial  by  prior  law,  the 
Legislature  has  power  to  make  immaterial  by  a  subsequent  law. 
Cooley,  Constitutional  Limitations,  371. 

^  License  Cases,  5  Howard,  588. 
7 


98         American  Constitutional  Law 

of  life,  liberty,  or  property,  without  due  process 
of  law."  The  so-called  "right"  to  manufacture  or 
sell  such  articles  is  not  a  right  growing  out  of  citizen- 
ship of  the  United  States.^  Such  manufacture  or 
sale,  or  its  prohibition  is  wholly  within  the  power 
of  the  State  to  control.  ^ 

Such  control  is  of  wholly  internal  affairs.  The 
right  to  manufacture  or  sell  such  articles  is  not  a 
right  under  a  contract  as  the  word  contract  is  used  in 
the  Constitution.  3  Prohibition  of  the  manufacture 
and  sale  of  such  articles,  save  as  excepted,  does  not 
deprive  the  citizen  of  his  constitutional  rights.  Such 
prohibition  is  the  policy  of  the  supreme  power  in 
the  State  and  is  an  exercise  of  a  function  within  its 
jurisdiction. 

The  exercise  of  the  police  power  of  the  State  by  the 
destruction  of  property  which  is  itself  a  public  nuisance, 
or  the  prohibition  of  its  use  in  a  particular  way  whereby 
its  value  becomes  depreciated,  is  very  different  from  tak- 
ing property  for  public  use,  or  from  depriving  a  person 
of  his  property  without  due  process  of  law.  In  one 
case,  a  nuisance  only  is  abated ;  in  the  other,  unoffending 
property  is  taken  away  from  an  innocent  owner. '' 

8 1 .  The  provision  of  the  Constitution  that  private 
property  shall  not  be  taken  for  public  use  without 

'  Bartemeyer  v.  Iowa,  18  Wallace,  129. 
^  Foster  v.  Kansas,  112  U.  S.,  201. 
3  Alugler  V.  Kansas,  123  U.  S.,  623  (1887). 
^  Idem. 


VC64S 

The  Law  of  Contracts  "and  -Property:  p9 

compensation  is  a  limitation  'oh  tile' -'powqr/.'df 'the 
federal  government,  and  not  on  the  States, '  but', 
the  State  constitutions  usually  include  the  limita- 
tion in  their  Bills  of  Rights:  the  principle  is 
"essentially  a  part  of  American  constitutional 
law.'" 

82.  For  consequential  injury  resulting  from  the 
exercise  of  the  power  of  eminent  domain  there  is  no 
redress,  3  but  where  such  exercise  of  power  works 
effectual  destruction  of  land  so  as  to  impair  its  use- 
fulness, it  is  a  taking  of  property  for  public  use 
and  the  owner  is  entitled  to  compensation.''  The 
principle  here  is  that. 

If  in  such  cases  suitable  and  adequate  provision 
is  made  by  the  Legislature  for  the  compensation  of 
those  whose  property  or  franchise  is  injured  or  taken 
away,  there  is  no  violation  of  public  faith  or  private 
right. 

It  is  also  a  well-established  principle  that  no  con- 
struction of  the  clause  in  the  Bill  of  Rights  (in  any 
constitution)  providing  compensation  for  property 
taken  for  a  public  use  shall  so  extend  the  benefits 
of  the  clause  as  to  give  indirect  or  consequential 


'  Amendment  V. 

*  Pumpelly  v.  Green  Bay  Co.,  13  Wallace,  166  (1871). 
J  Idem. 

*  Preceding  case  and  Central  Bridge  Corporation  v.  City  of  Lowell, 
4  Gray  (Mass.),  474  (1855)- 


lOO      -Am^ncan  Constitutional  Law 

daiTia^s  to  a  person  when  the  pubHc  already  has  a 
n^kttui  use  of  the  property.  ^ 

83.  Though  the  right  of  eminent  domain  and 
its  exercise  are  not  enumerated  in  the  Constitution, 
the  power  being  inseparable  from  sovereignty  and  the 
right  being  the  offspring  of  political  necessity,  must 
be  recognized  as  existing.  The  right  is  one  of  these 
which  is  not  denied,  and  being  essential,  is  implied. 
Were  the  right  to  acquire  property,  and  for  other 
purposes,  denied  the  United  States,  the  unwillingness 
of  property-holders  to  sell,  or  legislation  by  a  State 
prohibiting  a  sale  to  the  federal  government  would 
make  nugatory  the  government  itself,  and  its  exist- 
ence would  thus  depend  upon  the  will  of  a  State, 
or  even  upon  that  of  a  private  citizen.  ^  The  essential 
matter  here  is  of  sovereignty,  or  jurisdiction.  The 
two  sovereignties,  the  several  States  and  the  United 
States,  possess,  each,  this  right  commensurable 
with  their  respective  jurisdictions. 

The  proper  view  of  the  right  of  eminent  domain  seems 
to  be,  that  it  is  a  right  belonging  to  a  sovereignty  to  take 

^Pierce  v.  Drew,  136  Mass.,  75  (1883).  The  case  grew  out  of 
plaintiff's  claim  for  damages  because  the  town  had  granted  a  telegraph 
company  the  right  to  erect  its  poles,  wires,  etc.,  along  the  highway 
abutting  plaintiff's  land.  The  highway  being  land  in  public  use, 
plaintiff  claimed  indirect  or  consequential  damages  because  of  the 
erection  of  the  poles,  wires,  etc.,  of  the  duly  franchised  telegiaph 
company.  Plaintiff's  complaint  was  (inter  alia)  that  said  poles, 
wires,  etc.,  disfigured  and  depreciated  his  property.  See  also  Bedford 
V.  U.  S.,  192  U.  S.,  217  (1904) ;  the  principle  therein  further  examined. 

^  Kohl  V.  United  States,  91  U.  S.,  367  (1875). 


The  Law  of  Contracts  and  Property  loi 

private  property  for  its  own  public  uses,  and  not  alone 
for  those  of  another.  Beyond  that,  there  exists  no  neces- 
sity; which  alone  is  the  foundation  of  the  right.  If  the 
United  States  have  the  power,  it  must  be  complete  in 
itself.  It  can  neither  be  enlarged  nor  diminished  by  a 
State.' 

^  Kohl  V.  United  States,  91  U.  S.,  367  (1875). 


CHAPTER  VII 

THE  LAW  OF  THE  EXECUTIVE  POWER 

84.  The  executive  power  of  the  United  States 
is  vested  in  a  President.  The  executive  is  single, — 
that  is,  one  person.  He  possesses  all  the  executive 
powers  which  the  sovereign, — the  people  of  the 
United  States,  have  conferred.  His  power  is  deriva- 
tive, not  original.  His  power  is  not  defined  by  the 
Constitution,  that  is,  it  is  not  fully  set  forth  by 
limitations.  It  is  limited  in  two  particulars:  he 
cannot  grant  reprieves  or  pardons  in  cases  of  im- 
peachment, and  he  solemnly  swears  or  affirms 
faithfully  to  execute  the  office  of  President  of  the 
United  States.  This  solemn  obligation  implies  that 
he  himself  is  not  the  sole  or  the  final  judge  of  his 
fidelity  in  executing  his  office.  This  responsibility 
of  the  President  to  a  superior,  in  certain  cases,  is 
clearly  stated  by  the  Constitution  itself:  first,  that 
the  House  of  Representatives  shall  have  the  sole 
power  of  impeachment,  and  secondly,  that  the 
Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments, and  when  sitting  for  that  purpose,  its  members 

102 


The  Law  of  the  Executive  Power  103 

shall  be  on  oath  or  affirmation.  When  the  President 
is  tried,  the  Chief  Justice  of  the  United  States  shall 
preside,  and  no  person  shall  be  convicted  without  the 
concurrence  of  two  thirds  of  the  members  present.  * 

85.  Whether  or  not  the  President  has  performed 
the  duties  of  his  office  is  a  political  question  and 
may  alone  be  determined  by  impeachment  and 
conviction.  President  Johnson  was  impeached  but 
not  convicted, — whence  the  conclusion  that  he 
faithfully  executed  the  office  of  President.  The 
term  "office"  is  not  used  in  the  Constitution  as 
descriptive  of  the  exercise  of  legislative  power  by 
either  House  or  by  its  respective  members.  Senators 
and  Representatives  receive  a  compensation  for  their 
"services."  No  person  holding  any  "office"  under 
the  United  States  can  be  a  member  of  either  House 
during  his  continuance  in  "office."*  But  the  Con- 
stitution does  not  apply  the  term  "office "  to  the  two- 
year  term  of  a  Representative,  or  to  the  six-year 
term  of  a  Senator,  or  to  the  duties,  rights,  privileges, 
qualifications,  or  powers  of  either.  We  shall  see  that 
the  term  is  applied  to  judges  of  the  United  States. 

86.  The  executive  power  of  the  United  States 
is  vested  in  a  President,  and  the  faithful  exercise  of 


'Art.  i.,  2  :5;  3  :6. 

*  Compare  Art.  i.,  6:  i,  2;  9  :  8;  Art.  ii.,  i  :  l;  Art.,  5,  8;  "ofiScer" 
in  Art.  ii.,  2  :  I,  2;  Art.  ii.,  4  :  i;  "oflSces"  in  Art.  iii,,  i  :  i;  vi.,  3. 
There  is  every  reason  that  the  framers  of  the  Constitutiou  used 
words  with  profound  discernment  and  discriminating  care. 


104       American  Constitutional  Law 

that  delegated  power  is  the  faithful  execution  of  the 
office  of  President.  From  the  nature  of  the  power 
it  cannot  be  defined.  The  office  was  created  by  the 
people  of  the  United  States  at  the  close  of  the  eigh- 
teenth century,  when  distrust  of  the  executive  (the 
crown)  was  dominant  in  the  American  mind.  The 
trend  then  was  to  enthrone  the  legislative  and  to 
dethrone  the  executive.  It  is  remarkable  that  the 
supreme  law  of  the  land,  made  at  that  time,  should 
vest  such  vast  powers  in  the  executive.  He  is 
commander-in-chief  of  the  army  and  navy  and  of 
the  State  militia  when  in  the  actual  service  of  the 
United  States^  but  Congress  alone  can  declare  war.^ 
He  participates  in  legislation,  and  possesses  the 
veto  power  (which  constitutionally  comprises  that 
participation)  ^  but  unlike  the  governor,  under  some 
later  constitutions,  he  cannot  veto  a  particular  item 
in  an  appropriation  bill.'* 

He  makes  treaties,  provided  two  thirds  of  the 
Senators  present  concur,  ^  and  the  control  of  our 
foreign  relations  is  in  his  hands.  ^  Thus,  though  not 
possessing  the  war  power  by  the  verbal  provisions  of 
the  Constitution,  he  may  by  his  poHcy,  involve 
the  United  States  in  war.  He  possesses  the  appoint- 
ing power,  thus  determining  who  shall  fill  judicial 

»Art.  ii.,  2:1.  'Id.  I,  8:11.  >Id.l,-j:2. 

<  Constitution  of  Pennsylvania,  1873,  iv.,  16. 

s  Art.  ii.,  2:2.  *  Id.     The  Federalist,  No.  Ixxv. 


The  Law  of  the  Executive  Power  105 

and  administrative  offices,  under  the  Constitution,* 
a  power,  the  exercise  of  which  practically  determines 
the  character  of  the  federal  government.  In  brief, 
excepting  members  of  the  Senate  and  of  the  House, 
all  now  elected  directly  by  the  people  and  who,  at 
present,  comprise,  numerically,  about  one  one  thou- 
sandth part  of  the  aggregate  public  servants  in  the 
government  of  the  United  States,  the  President, — 
that  is,  the  executive  power  of  the  United  States 
delegated  to  the  President,  appoints  the  vast  body 
of  officials  in  the  national  service.  Most  of  these 
officials  have  ministerial  duties;  a  few  have  judicial. 
Strictly  speaking,  the  President  is  the  only  executive 
officer  provided  for  by  the  Constitution. 

87.  In  the  "Executive  Department"  (an  expres- 
sion known  to  the  Constitution^),  it  is  the  President 
alone  who  makes  the  appointments.  "  The  principal 
officer  in  each  of  the  executive  departments"  is 
known  to  us  as  a  member  of  the  Cabinet,  and  is  an 
appointee  of  the  President.  The  office  of  a  member 
of  the  Cabinet  affords  an  illustration  of  that  rare 
tenure,  a  tenant  at  will.  This  tenure  is  stated  by 
Lincoln  in  a  memorandum  read  to  his  Cabinet: 
"I  must  myself  be  the  judge  how  long  to  retain  and 
when  to  remove  any  of  you  from  his  position."  ^ 

88.  The  President  cannot  be  enjoined  from  dis- 

*  Art.  ii.,  2:2.  ^  Id.,  2  : 1. 

J  July  (14?),  1864.    Lincoln's  Works  (Century  Ed.)  i.,  548. 


io6       American  Constitutional  Law 

missing,  or  be  mandamused  to  receive  a  person, 
from  or  into  his  Cabinet.  Indeed,  such  is  the 
nature  of  the  office  of  President,  he  is  not  amenable 
to  writs  of  the  law.  He  cannot  be  compelled  by 
law  to  approve  or  to  disapprove  a  bill  that  has 
passed  Congress;  or  to  appoint  or  to  refrain  from 
appointing  any  person  to  any  office  within  his 
jurisdiction.  Nor  can  he  be  questioned  in  any 
court  of  law  respecting  his  office,  nor  be  made  a  wit- 
ness in  any  controversy.  His  powers  are  adequate 
to  the  execution  of  his  office.  It  may  be  said  that 
this  is  essentially  true  of  the  legislative, — the  Con- 
gress, and  of  the  judiciary, — the  Courts  of  the 
United  States. 

89.  Thus  the  President  has  power  to  protect  a 
federal  judge  from  threatened  personal  attack.^ 
He  has  power  to  receive  ambassadors  and  other 
public  ministers  and  representatives  of  other  sover- 
eignties, a  power  which  implies  his  right  to  refuse  to 
receive  those  sent,  or  to  dismiss  those  sent,  or  to 
request  their  recall,  or  to  discontinue  relations  with 
them.  Nor  can  any  person,  or  State,  through  any 
court  of  law,  compel  or  forbid  him  to  do  either.  In 
other  words,  the  powers  of  the  President  of  the 
United  States  are  executive,  not  ministerial.  This 
distinction  applies  to  no  appointee  of  the  President, 
in  any  of  the  executive  departments.     Their  office 

'  In  re  Neagle,  135  U.  S.,  i  (1889). 


The  Law  of  the  Executive  Power  107 

is  ministerial  and  every  ministerial  office  in  the 
government  of  the  United  States  is  subject  to  inquiry- 
through  a  court  of  law.  '^ 

Thus  the  executive  power  of  the  United  States  is 
not  subject  to  the  legislative  power.  ^  We  have  seen 
that  it  is  not  subject  to  the  judicial  power.  Yet,  if 
this  be  so,  by  what  power  can  the  President  be 
impeached  for  not  faithfully  executing  his  office? 

90.  The  restraint  of  impeachment  is  not  legisla- 
tion nor  the  exercise  of  legislative  powers  vested  in 
Congress.  Impeachment  is  the  accusation  made  by 
the  House  of  Representatives  that  the  President 
has  not  faithfully  executed  his  office.  Conviction  is 
the  adverse  judgment  of  the  Court  of  Impeachment, 
— the  Senate  sitting  under  special  oath  for  a  special 
purpose,  not  legislative,  as  duly  provided  for  by  the 
Constitution.  Had  the  people  of  the  United  States, 
in  1787,  chosen  to  provide,  in  the  Constitution,  for  a 
Court  of  Impeachment  consisting,  say,  of  Governors 
of  States,  or  that  State  Legislatures  should  have 
the  sole  power  of  impeachment,  no  one  would  claim 
that  the  governors  or  the  legislators  so  engaged 
were  exercising  either  executive  or  legislative  func- 

'  Spaulding  v.  Vilas,  l6i  U.  S.,  483;  U.  S.  v.  Windom,  137  U,  S., 
636;  U.  S.  V.  Blaine,  139  U.  S.,  306.  Marbury  v.  Madison,  i  Cranch, 
137;  Kendall  v.  U.  S.,  12  Peters,  524;  U.  S.  v.  Black,  128  U.  S., 
40;  Mississippi  i).  Johnson,  4  Wallace,  475;  Georgia  v.  Stanton,  6 
Wallace,  57. 

^  Ex  parte  Garland,  4  Wallace,  333  (1886). 


io8       American  Constitutional  Law 

tions.  So  the  Houses  of  Congress  engaged  in  an 
impeachment  trial  of  the  President,  or  of  any  "  officer 
of  the  United  States"  are  not  engaged  in  legislation. 
If  Congress  possessed  legislative  power  to  remove 
the  President,  it  could  vacate  the  presidential  office 
by  an  act  and  pass  it  over  the  President's  veto. 
Such  a  power  vested  in  Congress  would  nullify  the 
power  vested  in  the  President  and  would  make  him  a 
creature  of  Congress. 

91.  The  constitutional  provision  that  when  the 
Senate  sits  as  a  Court  of  Impeachment  the  Chief 
Justice  of  the  United  States  shall  preside,^  in  no 
way  affects  the  judicial  power  vested  in  the  supreme 
and  inferior  Courts  of  the  United  States.  The 
reason  for  the  provision  is  obvious.  The  Senate, 
which  is  the  special  Court  of  Impeachment,  has 
ordinarily,  and  by  the  Constitution,  two  presiding 
officers :  one,  ex  officio,  the  Vice-President ;  the  other, 
the  President  pro  tempore,  who  is  a  Senator.  * 

The  conviction  of  a  President  removes  him  from 
the  office  and  the  Vice-President  (or  whosoever  by 
law  is  in  line  of  succession)  succeeds  him.  The  Presi- 
dent pro  tempore  of  the  Senate,  votes  in  the  Court  of 
Impeachment  as  a  Senator.  If  either  the  Vice- 
President,  or  the  President  pro  tempore  presided  over 
the  Court  of  Impeachment,  when  a  President  is  on 
trial,  the  principle  of  freedom  from  official,  or  one 

'  Art.  i.,  3:6.  *  Id.,  3  :  4,  5. 


The  Law  of  the  Executive  Power  109 

may  say,  personal  bias  would  be  violated.  The 
Chief  Justice  presides, — an  official  of  high  rank, 
disinterested,  save  to  be  fair  to  all  parties,  and 
capable  of  so  ruling.  But  when  the  Court  of  Im- 
peachment sits  to  try  other  officials  (except  the  Vice- 
President)  the  Chief  Justice  does  not  preside.  When 
he  presides  and  makes  rulings  they  are  not  compar- 
able to  rulings  or  decisions  he  renders  as  the  voice 
of  the  Supreme  Court.  The  finding  of  the  Court 
of  Impeachment  is  not  analogous  to  the  decisions 
of  that  Court. 

92.  It  follows  therefore  that  the  executive  power 
of  the  United  States,  vested  in  the  President,  is  not 
subject  to  the  legislative  or  to  the  judicial  power.  It 
is  independent  of  either  or  both.  Yet  the  people  of 
the  United  States  have  provided  for  their  relief  from 
a  faithless  execution  of  the  office  of  President  by 
combining  Congress  and  the  Chief  Justice  of  the 
United  States  as  a  special  body,  or  agency,  a  Court 
of  Impeachment  through  which  to  secure  reHef. 

93.  It  is  evident  that  the  power  of  the  President 
of  the  United  States  is  very  great. 

The  scope  of  this  executive  power  has  never  been 
realized  [remarked  President  Hayes],  and  the  practical 
use  of  power,  even  by  an  ordinarily  strong  President,  is 
greater  than  the  books  ever  described.  The  executive 
power  is  large  because  not  defined  in  the  Constitution. 
The  real  test  has  never  come,  because  the  Presidents, 


no       American  Constitutional  Law 

down  to  the  present,  have  been  conservative,  or  what 
might  be  called  conscientioiis,  men,  and  have  kept  within 
limited  range.  And  there  is  an  unwritten  law  of  usage 
that  has  come  to  regulate  an  average  administration. 
But  if  a  Napoleon  ever  became  President,  he  would 
make  the  executive  almost  what  he  wished  to  make  it.* 
Practically  the  President  has  the  nation  in  his  hands. ^ 

94.  The  principle,  difficult  to  understand,  regula- 
tive of  the  constitutional  law  of  the  executive  power, 
is  the  principle  of  executive  as  distinct  from  minis- 
terial power. 

A  ministerial  dut}'-,  the  performance  of  which  may,  in 
proper  cases,  be  required  of  the  head  of  a  department, 
by  judicial  process,  is  one  in  which  respect  to  nothing  is 
left  to  discretion.  It  is  a  simple,  definite  duty,  arising 
under  conditions  admitted  or  proved  to  exist,  and  im- 
posed by  law.'^ 

This  means  that  where  the  law  requires  the  perform- 
ance of  a  single  specific  act,  there  is  no  room  for  the 
exercise  of  judgment,  there  is  nothing  left  to  dis- 
cretion ;  the  act  is  ministerial.  "Very  different  is  the 
duty  of  the  President  in  the  exercise  of  the  power  to 
see  that  the  laws  are  faithfully  executed, — the  duty 
thus  imposed  is  in  no  sense  ministerial;  it  is  purely 
executive  and  political."'' 

'  Notes  of  conversation,  etc.,  C.  E.,  Stevens,  Sources  of  the  Consii' 
tution  of  the  United  States,  169.  ' 

^  Id.,  168. 

3  Mississippi  v.  Johnson,  4  Wallace,  475  (1866). 
*  Idem. 


The  Law  of  the  Executive  Power  1 1 1 

In  application  of  this  principle 

The  Congress  is  the  legislative  department  of  the 
government;  the  President  is  the  executive  department. 
Neither  can  be  restrained  in  its  action  by  the  judicial 
department;  though  the  acts  of  both,  when  performed, 
are,  in  proper  cases,  subject  to  cognizance.^ 

95.  The  principle  applies  alike  to  the  States. 
The  control  of  the  exercise  of  powers  belonging  exclu- 
sively to  the  executive  department  of  the  govern- 
ment of  a  State  can  in  no  sense  or  degree  be  assumed 
by  either  of  the  other  departments,  as  such  control 
would  amount  to  the  performance  of  executive 
duties  by  the  legislative  or  the  judiciary,  a  confusion 
of  functions  distinctly  forbidden  by  the  constitution. 
And  it  has  been  decided  that  ^'mandamus  will  not 
issue  to  the  Governor  to  compel  the  performance  of 
any  duty  pertaining  to  his  office,  whether  political 
or  merely  ministerial;  whether  commanded  by  the 
constitution  or  by  some  law  passed  on  the  subject."* 

'Mississippi  v.  Johnson,  4  Wallace,  475  (1866). 

^  Many  cases;  see  State  ex  rel.  v.  Stone,  120  Missouri,  428  (1894), 
in  which  most  of  the  cases  are  cited.  But  mandamus  will  issue  to  an 
appointee  of  the  executive,  a  ministerial  officer,  to  perform  a  minis- 
terial act.  U.  S.  ex  rel.  Daly,  28  App.  D.  C,  552 ;  35  Wash.  Law  Rep., 
81;  Garfield  v.  U.  S.  ex  rel.  Frost,  30  App.  D.  C,  165;  35  Wash.  Law 
Rep.,  771;  Griffin  v.  U.  S.,  ex  rel.  Le  Cuyer,  30  App.  D.  C,  291;  36 
Wash.  Law  Rep.,  103;  Drake  v.  U.  S.,  ex  rel.  Bates,  30  App.  D.  C,, 
312;  36  Wash.  Law  Rep.,  140;  U.  S.  ex  rel.  Newcomb  Motor  Co., 
30  App.  D.  C,  464;  36  Wash,  Law  Rep.,  150;  also  36  Wash.  Law 
Rep.,  681.     Also  U.  S.  ex  rel.  v.  Black,  128  U.  S.,  40  (i{ 


112       American  Constitutional  Law 

The  principle  of  American  constitutional  law  as  to 
executive  and  ministerial  powers  is  thus  stated: 

The  Court  will  not  interfere  by  mandamus  with  the 
executive  officers  of  the  government  in  the  exercise 
of  their  ordinary  official  duties,  even  where  those  duties 
require  an  interpretation  of  the  law,  the  Court  having  no 
appellate  power  for  that  purpose;  but  when  they  refuse 
to  act  in  a  case  at  all,  or  when  by  special  statute,  or 
otherwise,  a  more  ministerial  duty  is  imposed  upon  them, 
that  is,  a  service  which  they  are  bound  to  perform  without 
further  question,  then,  if  they  refuse,  a  mandamus  may 
be  issued  to  compel  them.  ^ 

*  United  States  ex  rel.  v.  Black,  128  U.  S.,  40;  and  see  the  cases 
cited  in  preceding  note. 

Note — Hamilton  in  The  Federalist  makes  the  classic  and  earliest 
examination  of  the  executive  power, — Nos.  Ixvii.-lxxvi.  Marshall's 
conception  of  the  federal  executive  accords  with  Hamilton's.  This 
conception  is  further  developed  in  the  decisions  of  the  Supreme 
Court,  in  Marshall's  time,  concerning  executive  functions,  and  by- 
Mr.  Justice  Story  in  his  Commentaries  on  the  Constitution.  In 
Political  Science  and  Constitutional  Law  (2  vols.  1891),  John  W. 
Burgess  makes  a  critical  and  comparative  study  of  executive  power. 
J.  H.  Finley  and  J.  F.  Sanderson  in  their  The  American  Executive 
and  Executive  Methods  (1908),  present  the  operation  of  executive 
power,  State  and  federal,  at  the  present  time. 


CHAPTER  VIII 

THE  LAW  OF  JUDICIAL  POWER 

96.  The  people  of  the  United  States,  like  other 
sovereignties,  possess  not  only  legislative  and  execu- 
tive functions,  but  also  judicial.  The  possession  of 
these  three  powers  by  sovereignty  is  essential  to 
its  existence  and  a  condition  of  any  conception  of  it. 
The  judicial  power  of  the  United  States  is  vested  in 
one  Supreme  Court  and  in  such  inferior  courts  as 
Congress  from  time  to  time  may  ordain  and  estab- 
lish. This  is  a  delegation  of  judicial  power.  ^  The 
inferior  courts  are  established  by  Congress  but  the 
power  of  these  courts  is  delegated  to  them  by  the 
people  of  the  United  States  through  the  Constitu- 
tion. Thus  it  may  be  said  that  these  inferior  courts 
exist  by  act  of  Congress  but  their  authority  is  dele- 
gated to  them  by  the  same  sovereignty  that  em- 
powers Congress  to  create  them.  The  power  of  the 
Supreme  Court  is  defined  in  the  word  supreme,  and 
that  of  the  inferior  courts  in  the  word  inferior. 
Congress   can    neither   increase   nor   decrease   this 

»  Art.  iii.,  i  :  i. 

8  113 


114       American  Constitutional  Law 

power;  the  sovereign  alone,  the  people  of  the  United 
States  can  modify  the  grant.  This  it  has  done  by 
the  Eleventh  Amendment,  ratified  in  1 798 : 

The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of 
any  foreign  State.  ^ 

This  Amendment  was  added  in  compliance  with 
the  idea, — at  the  time  dominant  in  America, — that 
a  State,  a  member  of  the  Union,  is  a  sovereign,  and 
being  sovereign,  cannot  be  made  defendant  (that  is, 
cannot  be  sued)  at  the  suit  of  a  citizen  or  subject  of 
another  State,  or  of  a  foreign  country.  The  idea 
was, — and  is, — that  an  American  Commonwealth 
may  be  petitioned,  like  any  other  sovereign,  but  can 
be  sued  only  in  its  own  courts  and  with  its  own 
consent,^  In  conformity  to  this  idea  the  Constitu- 
tion was  so  amended  as  to  deny  to  the  courts  of  the 
United  States  any  jurisdiction  whatever  in  any 
case  in  which  an  American  Commonwealth  is  made 
a  defendant. 

97.  This  Amendment  is  a  limitation  of  the 
judicial  power  delegated  to  the  government  of  the 

*  For  the  history  of  this  amendment  see  the  author's  Constitu- 
tional History  of  the  United  States,  ii.,  264-290. 

*  See  Iredell's  dissenting  opinion  in  Chisholm  v.  Georgia,  2  Dallas 
419(1793)-    • 


The  Law  of  Judicial  Power         115 

United  States  and  save  in  some  particulars  of  applied 
judicial  jurisdiction  as  original  or  appellate,  is  the 
only  limitation.  On  the  principle  that  the  govern- 
ment of  the  United  States  "must  possess  all  the 
means  and  have  a  right  to  resort  to  all  the  methods 
of  executing  the  powers  with  which  it  is  intrusted 
that  are  possessed  and  exercised  by  the  governments 
of  the  particular  States,"^  the  judicial  power  vested 
in  the  federal  courts  must  be  sufficient  for  aU  the 
functions  and  purposes  of  the  federal  government. 
The  judicial  power  of  the  United  States  extends  to 
all  cases,  in  law  and  equity,  arising  under  the  Con- 
stitution, the  laws  of  the  United  States,  and  the 
treaties  made  under  its  authority;  to  all  cases  affect- 
ing ambassadors,  other  public  ministers  and  consuls; 
to  all  cases  of  admiralty  and  maritime  jurisdiction ;  to 
controversies  to  which  the  United  States  is  a  party; 
to  controversies  between  two  or  more  States ;  between 
citizens  of  different  States;  between  citizens  of  the 
same  State  claiming  lands  under  grants  from  different 
States,  and  between  a  State,  or  its  citizens,  and 
foreign  states,  citizens,  or  subjects,  save  and  except  as 
jurisdiction  is  limited  by  the  Eleventh  Amendment.  ^ 
98.  It  will  be  observed  that  the  judicial  power 
thus  delegated  to  the  United  States  includes  jurisdic- 
tion over  cases  arising  outside  the  domain  strictly 

*  The  Federalist,  No.  xvi. 

*  Art.  iii.,  2:1;  Amendment  XI. 


ii6       American  Constitutional  Law 

included  (as  popularly  understood)  within  the  gov- 
ernment of  the  United  States.  That  government 
is,  of  necessity  and  by  its  nature,  a  distinct  govern- 
ment, possessing  powers  and  functions  and  purposes 
of  its  own,  delegated  and  set  forth  in  the  Constitu- 
tion. Fundamentally  there  is  a  government  of  the 
United  States  distinct  from  the  government  of  the 
States.  The  judicial  power  of  the  United  States 
includes  jurisdiction  over  controversies  to  which 
States  are  a  party, — that  is,  to  controversies  to 
which  the  United  States  is  not  a  party.  The  jurisdic- 
tion here  has  no  reference  to  the  controversy  but  to 
the  status  of  the  parties  to  the  controversy. 

99.  The  Federalist  sets  forth  the  principle  here 
involved: 

If  there  are  such  things  as  political  axioms,  the  pro- 
priety of  the  judicial  power  of  a  government  being  co- 
extensive with  its  legislative,  may  be  ranked  among  the 
number.  The  mere  necessity  of  uniformity  in  the  in- 
terpretation of  the  national  laws  decides  the  question. 
Thirteen  (1787;  forty-eight,  1917)  independent  courts  of 
final  jurisdiction  over  the  same  causes,  is  a  hydra  in 
government,  from  which  nothing  but  contradiction  and 
confusion  can  proceed.* 

This  aspect  of  the  judicial  power  of  the  United 
States  concerns  the  interpretation  of  the  supreme 
law.  One  purpose  of  that  law  is  "  to  insure  domestic 
tranquillity," — that   is,   the  peace  of  the  Union. ^ 

»  No.  Ixxx.  *  In  re  Neagle,  135  U.  S.,  I  (1889). 


The  Law  of  Judicial  Power         117 

The  Constitution  imposes  restrictions  on  the  States, 
which  of  course  means  restrictions  on  their  legisla- 
tures, their  governors,  and  their  courts.  Upon  prin- 
ciples of  good  government  the  States  are  prohibited 
from  doing  many  things.  How  shall  infractions  of 
the  supreme  law  be  determined?  Either  by  a  con- 
gressional negative,  or  by  the  authority  of  the 
federal  courts  overruling  whatsoever  act  of  the 
State  contravenes  the  Constitution,  ^ 
^  100.  But  the  judicial  power  of  the  United  States 
extends  yet  fiu"ther, — to  controversies  "in  which  the 
State  tribunals  cannot  be  supposed  to  be  impartial 
and  unbiased."^  The  principle  here  is  that  the 
whole  is  greater  than  a  part; 

that  the  peace  of  the  whole  ought  not  to  be  left  at  the 
disposal  of  a  part.  "No  man  ought  to  be  a  judge  in  his 
own  cause,  or  in  any  cause  in  respect  to  which  he  has  the 
least  interest  or  bias."^  On  the  principle  that  every 
government  ought  to  possess  the  means  of  executing  its 
own  provisions  by  its  own  authority, 

it  follows  that  it  is  necessary  that  the  construction 
of  the  Constitution, — the  supreme  law, — 

should  be  committed  to  that  tribunal  which,  having  no 
local  attachments,  will  be  likely  to  be  impartial  between 
different  States  and  their  citizens,  and  which,  owing  its 

^  The  Federalist,  No.  Ixxx. 

*  Id.     For  example,  were   the  Vice-President   to   preside  over 
the  Senate  sitting  as  a  Court  of  Impeachment. 
'  The  Federalist,  id. 


ii8       American  Constitutional  Law 

official  existence  to  the  Union,  will  never  be  likely  to 
feel  any  bias  inauspicious  to  the  principles  on  which  it  is 
founded.  ^ 

10 1 .  The  exercise  of  judicial  power  by  the  Supreme 
Court  is  provided  for,  in  part,  by  the  Constitution, 
but  Congress  is  authorized  to  ordain  and  establish 
inferior  courts, — which  means  to  define  their  respec- 
tive jurisdictions;  to  bestow  upon  a  court  so  much 
judicial  power,  and  to  make  such  restrictions,  rules, 
and  regulations  as  Congress  itself  may  deem  proper. 
Thus  Congress  establishes  such  courts  and  defines 
their  several  jurisdictions,  but  whatsoever  judicial 
power  a  court  possesses,  by  act  of  Congress,  the  court 
derives  from  the  Constitution  in  its  grant  of  such 
power.  The  jurisdiction  of  any  inferior  court  of  the 
United  States,  thus  defined  by  Congress,  may  vary, 
from  time  to  time,  by  act  of  Congress,  but  every  case 
arising  in  the  court  must  be  shown,  by  the  record 
of  the  court,  to  be  within  its  jurisdiction.^  The 
reason  for  this  important  rule  (and  seeming  restric-, 
tion)  conforms  to  the  essential  principle  in  all  judicial 
proceeding:  the  principle  of  authority.  No  court 
acts  without  authority  and,  as  judicial  examination 
has  for  its  ultimate  purpose  the  settlement  of  contro- 
versy in  a  legal  manner,  the  jurisdiction  of  the  court 
is  of  primary  importance.     One  of  the  purposes  of 

'  The  Federalist,  id. 

'  Robertson  v.  Cease,  97  U.  S.,  646. 


The  Law  of  Judicial  Power         119 

the  Union  is  "to  establish  justice,"  and  precision 
in  the  whole  matter  of  exercise  of  judicial  power  is 
essential. 

102.  The  jurisdiction  of  the  Supreme  Court  of 
the  United  States  is  both  original  and  appellate. 
Its  original  jurisdiction  is  defined  in  the  Constitution 
as  "in  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  State  is 
a  party."  ^  The  Court  can  have  original  jurisdiction 
in  no  other  cases,  nor  can  Congress  extend  or  di- 
minish the  Court's  jurisdiction.  Thus  to  the  words 
in  the  Constitution  conferring  original  jurisdiction 
on  the  Court  "a  negative  or  exclusive  sense  must 
be  given,  or  they  have  no  operation  at  all."^  The 
original  jurisdiction  of  the  Supreme  Court  was  con- 
ferred because  of  the  dignity  and  rank  of  the  Court, 
and  the  rank  of  the  parties  thus  privileged  to  appear 
before  it  at  first  instance.  Ambassadors,  public 
ministers,  and  consuls  represent  sovereignties,  and  a 
State  in  the  Union  is  "for  some  purposes  sovereign, 
for  some  purposes  subordinate."^  On  this  delega- 
tion of  original  jurisdiction  Chief  Justice  Marshall 
remarks:  "There  is,  perhaps,  no  part  of  the  article 
under  consideration  so  much  required  by  national 
policy  as  this."'*    The  rank  of  the  parties  is  the 

»  Art.  iii.,  2  :  2. 

^  Marbury  v.  Madison,  i  Cranch,  174. 

3  Cohens  v.  Virginia,  6  Wheaton,  414  (182 1).  *  Idem. 


120       American  Constitutional  Law 

reason  for  giving  them  the  right  to  begin  their  case 
in  the  Supreme  Court.  They  are  not  excluded  from 
beginning  it  in  some  other  court.  But  Congress,  in 
establishing  an  inferior  court,  may  deny  to  it  any 
jurisdiction  in  cases  to  which  foreign  representatives 
are  a  party.  ^  The  right  of  ambassadors,  public 
ministers,  and  consuls  to  begin  their  suits  in  the 
Supreme  Court  is  a  privilege  accorded  them  because 
of  their  governments,  and  not  because  of  themselves. 
As  they  are  accredited  to  the  Government  of  the 
United  States  and  not  to  any  State  government,  it  is 
proper  that  the  United  States  courts,  and  of  these 
the  Supreme  Court,  should  have  original  jurisdiction 
in  their  cases. '  In  all  the  other  cases  mentioned  in 
the  Constitution  the  Supreme  Court  has  appellate 
jurisdiction;  that  is,  cases  come  before  the  Court  on 
appeal  from  the  decision  of  some  inferior  federal 
court,  or  from  some  State  court,  as  provided  by  law. 
The  entire  procedure  in  an  appeal  to  the  Supreme 
Court  is  regulated  by  Congress.  If  a  party,  whether 
private  person,  private  corporation,  or  public  cor- 
poration, citizen,  or  State  is  within  the  jurisdiction  of 
the  United  States,  then  that  person  or  corporation, 
if  a  party  to  a  case  or  controversy  at  law,  is  within 
the  jurisdiction  of  a  federal  court.    The  Constitution 

'  So  Congress  has  denied  such  jurisdiction  to  State  courts, — 
Revised  Statutes,  U.  S.,  Sec.  687. 

'  Davis  V.  Packard,  7  Peters,  276;  Bors  v.  Preston,  in  U.  S.,  252 
(1884). 


The  Law  of  Judicial  Power        121 

is  the  supreme  law  of  the  land  and  this  Constitution, 
the  acts  of  Congress  and  the  treaties  made  by  its 
authority  are  the  law  of  federal  jurisdiction.  Thus 
it  is  commonly  and  truly  said,  that  whensoever  the 
Constitution,  or  a  treaty,  or  an  act  of  Congress  is 
involved  in  the  controversy,  the  federal  courts 
(as  their  several  jurisdictions  are  determined  by 
law)  have  jurisdiction  in  the  case.  The  principle  is 
one  of  sovereignty. 

103.  The  State  for  some  purposes  retains  its 
sovereignty, '  as  in  the  exercise  of  its  police  power.  ^ 
By  the  Constitution,  the  judicial  power  of  the  United 
States  extends  "to  all  cases  of  admiralty  and  mari- 
time jurisdiction,"  but  the  State  has  jurisdiction  to 
punish  crimes  committed  within  its  territory;  to 
regulate  fisheries  within  that  territory,  and  to  punish 
those  who  violate  its  regulations.  The  admiralty  and 
maritime  jurisdiction  of  the  United  States  extends 
to  the  high  seas,  to  the  navigable  waters  of  the 
United  States,  to  the  Great  Lakes,  and  to  rivers  and 
lakes  wholly  within  a  State.  Over  its  own  territory 
the  State  has  jurisdiction ;  thus  the  territory  which  is 
the  scene,  or  area,  or  location  of  the  act  may  be 
subject  to  both  State  and  federal  jurisdiction,  and 
is  always  within  one  or  the  other. 

'  Cohens  v.  Virginia,  supra. 

'  This  power  has  been  discussed  in  the  preceding  Chapters  on 
Sovereignty,  Legislation,  Commerce,  Taxation,  Contracts,  etc. 
See  index. 


122       American  Constitutional  Law 

104.  In  creating  inferior  courts,  Congress  deter- 
mines the  jurisdiction  but  not  the  judicial  power 
exercisable  within  the  jurisdiction.  Congress  does 
not  control  the  judges  in  their  execution  of  their 
office.  Judicial  power,  of  whatever  extent,  is  con- 
ferred by  the  Constitution;  it  is  power  of  a  judicial 
nature  delegated  by  the  people  of  the  United  States. 
The  inferior  courts  of  the  United  States  sit  in  the 
several  States,  but  the  right  to  determine  the  juris- 
diction of  these  courts  is  placed  not  in  the  State 
Legislatures  (though  these  Legislatures  have  by 
delegated  authority,  jurisdiction  of  this  territory), 
but  in  the  supreme  judicial  tribunal  of  the  nation, — 
that  is,  in  the  Supreme  Court  of  the  United  States.  ^ 
This  means  that  the  Supreme  Court  "says  what  the 
law  is."  This  is  the  peculiar  office  of  courts  of  law. 
This  is  another  way  of  saying  that  the  sovereign, 
the  people  of  the  United  States,  has  delegated  to  the 
Supreme  Court  and  to  inferior  courts  of  the  United 
States  not  legislative  or  executive  but  judicial 
powers.  The  courts  of  law  exercise  judicial  powers 
as  the  President  exercises  executive  and  the  Congress 
exercises  legislative  powers, — in  order  to  accompHsh 
the  purposes  set  forth  in  the  Preamble  of  the  Con- 
stitution. The  courts  are  empowered  to  accomplish 
this  purpose  only  in  a  judicial  way. 

105.  The  inferior  courts,  established  by  Congress, 

»  Bank  of  Commerce  v.  New  York  City,  2  Black,  620  (1862). 


The  Law  of  Judicial  Power        123 

have  such  jurisdiction  as  Congress  in  its  wisdom  sees 
fit  to  give  them  save  that  the  jurisdiction  belonging 
to  the  Supreme  Court  cannot  be  given  to  an  inferior 
court;  there  can  be  but  one  Supreme  Court.  The 
relation  of  the  State  courts  to  the  courts  of  the  United 
States  is  partly  determined  by  the  Constitution, 
partly  by  act  of  Congress.  The  circumstances  under 
which  a  case  in  or  from  a  State  court  may  be  trans- 
ferred, or  appealed,  to  a  federal  court  are  various, 
but  the  essential  reason  for  such  transfer  is  that  the 
jurisdiction  of  the  United  States  as  defined  by  the 
Constitution,  a  treaty,  or  an  act  of  Congress,  is 
involved.  A  case  or  controversy  not  involving  that 
jurisdiction  cannot  arise  in  any  federal  court.  The 
possible  relations  of  the  Constitution,  treaties,  and 
acts  of  Congress  to  individuals  (persons  natural), 
to  corporations  (persons  artificial,  as  private  cor- 
porations), and  to  States  (public  corporations),  are 
beyond  calculation.  The  line  of  demarcation  be- 
tween the  jurisdiction  of  State  courts  and  that  of 
federal  courts  cannot  be  fixed  by  any  brief  defini- 
tion or  survey.  In  some  instances  the  jurisdiction 
is  a  matter  of  choice  by  parties,  the  court  that  first 
takes  jurisdiction  having  it,  as  it  were,  by  first  in- 
stance, but  in  such  cases  there  exists  by  law  a  con- 
current jurisdiction,  judicial  procedure  being  open  to 
parties  in  either  the  State  or  the  federal  court.  In 
practice,  a  court  restricts  itself  to  its  own  jurisdiction. 


124       American  Constitutional  Law 

1 06.  It  has  been  said  that  one  test  of  demarcation 
between  the  two  jurisdictions  is  the  common  law; 
that  each  State  has  the  common  law  but  the  United 
States  has  statute  law  only.  This  difference  (if 
true)  would  restrict  federal  courts  to  an  exercise 
of  judicial  power  delegated  by  the  Constitution  and 
set  forth  in  laws  made  by  its  authority,  while  the 
State  courts  would  administer  justice  in  accord 
with  the  law  of  the  States  which  are  both  common 
law  and  statutory.  It  must  be  remembered,  how- 
ever, that  federal  courts  sit  in  the  several  States 
and  administer  whatsoever  law  is  the  local  (State) 
law,  taking  judicial  notice  of  State  statutes,  of 
decisions  of  State  courts,  of  usages,  of  the  common 
law  as  existing  in  the  State,  and,  therefore,  exercising 
a  jurisdiction  essentially  the  same  as  the  State 
courts.  Emphasis  may  well  be  placed  on  the  custom 
of  federal  courts  to  follow  closely  the  decisions  of 
State  courts, — the  result  being  that  State  decisions 
become  final  in  federal  courts  as  do  federal  deci- 
sions in  State  courts.  But  the  States  cannot  increase 
or  diminish  the  jurisdiction  of  federal  coiurts,  nor 
can  Congress  increase  or  diminish  the  jurisdiction 
of  State  courts.  Although  both  courts  may  have 
jurisdiction  in  certain  cases,  collisions  of  authority 
are  prevented  by  good  sense  and  comity  among 
State  and  federal  judges. 

107.  The  essential  power  of  any  federal  court  is 


The  Law  of  Judicial  Power        125 

to  exercise  federal  judicial  jurisdiction.  This  means, 
practically,  that  a  federal  court  does  not  and  cannot 
exercise  State  powers.  The  converse  also  is  true: 
no  State  court  can  exercise  federal  powers,  unless 
granted  those  powers  by  the  Constitution,  a  treaty, 
or  an  act  of  Congress;  but  a  State  court  exercising 
any  federal  powers,  is  thereby  a  federal  court. 
The  Constitution  provides  that  the  judges  in  every 
State  shall  be  bound  by  the  supreme  law  of  the  land, 
anything  in  the  constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding.  This  solemn  oath  of 
State  judges  to  support  the  Constitution  as  the 
supreme  law  gives  them  jurisdiction  "to  say  what 
the  law  is, "  ^  and  howsoever  rarely  they  may  exercise 
the  power  vested  in  them  to  do  so,  State  judges  may 
take  judicial  notice  of  any  law.  State  or  federal,  as 
harmonizing  or  conflicting  with  the  Constitution; 
this  means  that  a  State  court  may  pronounce  an 
act  of  Congress  unconstitutional,  but  the  decision 
of  that  court  is  not  final :  there  is  but  one  Supreme 
Court  of  the  United  States.  ^ 

108.  Territorial  courts  are  to  be  distinguished 
from  courts  of  the  United  States.  They  are  not 
federal  courts  as  are  the  Supreme  Court  and  the 

»  Marbury  v.  Madison,  i  Cranch,  137  (1803). 

'  The  relation  of  the  United  States  to  the  State  judiciary;  the 
subject  of  concurrent  (State  and  federal)  judicial  jurisdiction,  is 
examined  by  Hamilton  in  The  Federalist,  Nos.  Ixxviii-lxxxiii.  See  also 
Martin  v.  Hunter's  Lessee,  i  Wheaton,  304  (1816). 


126       American  Constitutional  Law 

inferior  courts,  namely,  the  Circuit  Courts,  the 
District  Courts,  or  the  Court  of  Claims,  Neither 
are  they  State  courts. 

The  Constitution  being  made  only  for  the  people 
of  the  United  States, — that  is,  for  the  people  of  the 
United  States  inhabiting  States,  ^  does  not  apply  or 
extend  to  the  territories  unless  extended  by  act  of 
Congress.  The  courts  in  a  territory  are  created  by 
Congress  and  have  such  powers  (or  jurisdiction)  as 
the  act  creating  them  provides.  But  in  creating 
them.  Congress  is  limited  by  the  Constitution.* 
Congress  also  creates  courts  martial,  but  the  juris- 
diction of  these  courts  is  always  subject  to  inquiry  by 
civil  courts.  Ftmdamentally,  the  reason  here  is  the 
supremacy  of  the  civil  over  the  military  authority 
in  the  American  system  of  government. 

109.  A  problem  not  infrequently  arising  in  courts 
of  law  is  the  solution  of  some  political  question 
involved.  All  political  questions  are  questions  for 
the  political  department  of  the  government  to 
settle;  they  lie  wholly  outside  of  the  jurisdiction  of 
the  courts.  Thus  the  courts  never  decide  as  to  the 
wisdom  or  folly  of  an  executive  or  legislative  act, — 
and  in  one  form  or  another,  every  act  of  Congress 
or  President  is  politically  wise  or  unwise  according 
to  the  political  belief  of  the  critic.  Nor  do  the 
debates  over  an  act  fix  the  meaning  of  the  act,  with 

'  Hepburn  v.  Ellzey,  2  Cranch,  445  (1805).  '  Art.  iii. 


The  Law  of  Judicial  Power         127 

the  court.  Where  the  court  was  asked  to  refer  to  the 
debates  in  Congress  to  determine  the  meaning  of  the 
act,  it  was  said: 

All  that  can  be  determined  from  the  debates  and 
reports  is  that  various  members  had  various  views,  and 
we  are  left  to  determine  the  meaning  of  this  act,  as  we 
determine  the  meaning  of  other  acts,  from  the  language 
used  therein.  There  is,  too,  a  general  acquiescence  in 
the  doctrine  that  debates  in  Congress  are  not  appro- 
priate sources  of  information  from  which  to  discover  the 
meaning  of  the  language  of  a  statute  passed  by  that 
body.  ^ 

The  reason,  [continues  the  court],  is  that  it  is  impossible 
to  determine  with  certainty  what  construction  was  put 
upon  an  act  by  the  members  of  a  legislative  body  that 
passed  it  by  resorting  to  the  speeches  of  individual 
members  thereof.  Those  who  did  not  speak  may  not 
have  agreed  with  those  who  did,  and  those  who  spoke 
might  differ  from  each  other,  the  result  being  that  the 
only  proper  way  to  construe  a  legislative  act  is  from  the 
language  used  in  the  act,  and,  upon  occasion,  by  a 
resort  to  the  history  of  the  times  when  it  passed. 

no.  In  1828  the  Supreme  Court  sustained  as  a 
constitutional  exercise  of  the  war  power  the  right 
of  the  United  States  to  acquire  territory  by  conquest 
or  treaty.^  The  issue  in  the  case  was  "the  relation 
in  which  Florida  (at  the  time  a  Territory)  stands  to 
the  United  States."     It  was  an  issue  in  law,  not  in 

*  United  States  v.  Freight  Association,  i66  U.  S.,  290,  citing  many 
cases. 

^  American  Insurance  Company  v.  Cantor,  i  Peters,  542. 


128       American  Constitutional  Law 

politics.  Whether  A  or  B  is  the  lawful  governor  of  a 
State  is  an  issue,  when  legally  drawn,  for  the  State 
courts;  but  whether  a  community  calling  itself  a 
State,  is  a  member  of  the  Union,  or  should  be  ad- 
mitted into  it,  under  the  Fourth  Article  of  the  Con- 
stitution is  a  political  question  and  is  for  Congress  to 
decide. 

It  rests  with  Congress  to  decide  what  government  is 
the  established  one  in  a  State.  For  as  the  United  States 
guarantees  to  each  State  a  republican  form  of  government, 
Congress  must  necessarily  decide  what  government  is 
established  in  the  State  before  it  can  determine  whether 
it  is  republican  or  not.  And  when  the  senators  and 
representatives  of  a  State  are  admitted  into  the  councils 
of  the  Union,  the  authority  of  the  government  under 
which  they  are  appointed,  as  well  as  its  republican 
character,  is  recognized  by  the  proper  constitutional 
authority.  And  its  decision  is  binding  on  every  other 
department  of  the  government,  and  could  not  be  ques- 
tioned in  a  judicial  tribunal.^ 

The  right  to  decide  such  a  political  question  is  in 
Congress  and  not  in  the  courts.* 

III.  The  final  authority  of  American  courts  of 
law  to  construe  statutes  and  constitutions  is  dis- 
tinctive.    The  court  pronounces  a  law  unconstitu- 

'  Luther  v.  Borden,  7  Howard,  i  (1848). 

*  The  whole  subject  of  the  American  judiciary  is  largely  technical 
and  can  be  known  only  through  intimate  knowledge  of  the  Reports, 
of  the  Statutes  at  Large,  and  familiarity  with  practice.  In  the  present 
chapter  the  essentials  of  the  law  of  judicial  procedure  are  the  imme- 
diate subject. 


The  Law  of  Judicial  Power         129 

tional  and  thus  expounds  the  constitution.  "This 
results,"  says  Cooley,  "from  the  nature  of  its 
jurisdiction."  Chief  Justice  Marshall,  in  1803,  first 
applied  this  principle  in  a  Federal  court : 

The  Government  of  the  United  States  has  been  em- 
phatically termed  a  government  of  laws  and  not  of  men. 

The  Constitution  is  the  supreme  law  of  the  land. 

It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is.  ^ 

In  these  words  is  stated  the  essential  doctrine  of 
judicial  supremacy.  As  the  doctrine  is  fundamental, 
the  reason  for  it  is  essential  to  a  proper  understand- 
ing of  its  vast  import: 

That  the  people  have  an  original  right  to  establish 
for  their  future  government  such  principles  as  in  their 
opinion  shall  most  conduce  to  their  own  happiness,  is 
the  basis  on  which  the  whole  American  fabric  has  been 
erected.  The  exercise  of  this  original  right  is  a  very 
great  exertion;  nor  can  it,  nor  ought  it  to  be  frequently 
repeated.  The  principles,  therefore,  so  established  are 
deemed  fundamental.  And  as  the  authority  from  which 
they  proceed  is  supreme,  and  can  seldom  act,  they  are 
designed  to  be  permanent.  This  original  and  supreme 
will  organizes  the  government,  and  assigns  to  different 
departments  their  respective  powers.  It  may  either  stop 
here  or  establish  certain  limits  not  to  be  transcended  by 
those  departments.  ...  It  is  a  proposition  too  plain 
to  be  contested,  that  the  Constitution  controls  any  legis- 
lative act  repugnant  to  it;  or  that  the  Legislature  may 

^Marbury,  v.  Madison,  i  Cranch,  163. 
9 


130       American  Constitutional  Law 

alter  the  Constitution  by  an  ordinary  act.  Between 
these  alternatives  there  is  no  middle  ground.  The  Con- 
stitution is  either  a  superior,  paramount  law,  unchange- 
able by  ordinary  means,  or  it  is  on  a  level  with  ordinary 
legislative  acts  and,  like  other  acts,  is  alterable  when  the 
legislature  shall  please  to  alter  it.  If  the  former  part  of 
the  alternative  be  true,  then  a  legislative  act  contrary 
to  the  Constitution  is  not  law;  if  the  latter  part  be  true, 
then  written  constitutions  are  absurd  attempts  on  the 
part  of  the  people  to  limit  a  power  in  its  own  nature 
illimitable.  Certainly  all  those  who  have  framed  written 
constitutions  contemplate  them  as  forming  a  fundamen- 
tal and  paramount  law  of  the  nation,  and  consequently 
the  theory  of  every  such  government  must  be,  that  an 
act  of  the  Legislature  repugnant  to  the  constitution  is 
void.  ...  It  is  emphatically  the  province  and  duty 
of  the  judicial  department  to  say  what  the  law  is.  Those 
who  apply  the  rule  to  particular  cases  must  of  necessity 
expound  and  interpret  that  rule.  If  two  laws  conflict 
with  each  other,  the  courts  must  decide  on  the  operation 
of  each.  So,  if  a  law  be  in  opposition  to  the  Constitution, 
if  both  the  law  and  the  Constitution  apply  to  a  particular 
case,  so  that  the  court  must  either  decide  the  case  con- 
formabl}''  to  the  law  disregarding  the  Constitution,  or 
conformabl}^  to  the  Constitution  disregarding  the  law, 
the  court  must  determine  which  of  these  conflicting 
rules  governs  the  case.  This  is  of  the  very  essence  of 
judicial  duty.  .  .  .  Those,  then,  who  controvert  the 
principle  that  the  Constitution  is  to  be  considered  in 
court  as  a  paramount  law,  are  reduced  to  the  necessity 
of  maintaining  that  courts  must  close  their  eyes  on  the 
Constitution,  and  see  only  the  law.  This  doctrine  would 
subvert  the  very  foundation  of  all  written  constitutions. 
It  would  declare  that  an  act,  which  according  to  the 


The  Law  of  Judicial  Power        131 

principles  and  theory  of  our  government  is  entirely  void, 
is  yet  in  practice  completely  obligatory.  ...  It  would 
be  giving  the  Legislature  a  practical  and  real  omnipo- 
tence with  the  same  breath  which  professes  to  restrict 
their  powers  within  narrow  limits.  That  it  thus  reduces 
to  nothing  what  we  have  deemed  the  greatest  improve- 
ment on  political  institutions, — a  written  constitution, — 
would  of  itself  be  sufficient,  in  America,  where  written 
constitutions  have  been  viewed  with  so  much  reverence, 
for  rejecting  the  construction.  But  the  peculiar  ex- 
pressions of  the  Constitution  of  the  United  States  furnish 
additional  arguments  in  favor  of  its  rejection.  ^ 

The  conclusion  of  the  whole  matter  is : 

Thus  the  particular  phraseology  of  the  Constitution  of 
the  United  States  confirms  and  strengthens  the  principle, 
supposed  to  be  essential  to  all  written  constitutions,  that 
a  law  repugnant  to  the  constitution  is  void;  and  that 
courts,  as  well  as  other  departments,  are  bound  by  that 
instrimient.^ 

112.  The  federal  (or  the  State)  judiciary,  while 
final  judge  of  what  the  law  is,  is  not  the  judge  of  what 
the  law  should  be :  such  action  would  be  a  violation 
of  judicial  functions  and  an  assumption  of  legislative 
functions.  3  The  court  in  saying  what  the  law  is, 
that  is,  what  it  means,  does  not  attempt  to  say  what 

'  Marbury  v.  Madison,  i  Cranch,  176-180. 

^  All  of  Marshall's  decisions  rest  on  the  principle,  thus  set  forth, 
and  it  remains  fundamental  in  America,  applying  alike  in  the  States 
and  in  the  United  States. 

3  The  principle  is  examined  in  State  ex  rel.  v.  Stone,  120  Missouri, 
428   (1894).     Also  in  Luther  v.  Borden,  7  Howard,  i  (i{ 


132       American  Constitutional  Law 

the  law  should  be,  that  is,  to  make  the  law.  There- 
fore it  is  perilous,  as  likely  to  embarrass  the  court, 
for  the  court  to  be  subject  to  the  call  of  the  executive, 
or  the  legislative,  to  give  an  opinion  "upon  important 
questions  of  law,  and  upon  solemn  occasions.  "^  The 
peril  lies  in  possible  confusion  of  governmental 
functions,  or,  to  use  the  constitutional  term,  "offices." 
The  American  people  have  delegated  judicial  power 
to  the  courts :  the  people  of  the  several  States  to  their 
State  courts;  the  people  of  the  United  States,  to  the 
federal  courts;  and  "it  is  emphatically  the  province 
and  duty  of  the  judicial  department  to  say  what  the 
law  is." 

113.  This  province  the  American  judiciary  occu- 
pies, this  duty  it  performs,  with  the  result  that  it 
holds  a  unique  place  in  political  history.  At  no 
other  time,  among  no  other  people,  in  no  other 
form  of  government  has  the  judiciary  executed 
the  office  it  executes  in  the  American  system  of 
government. 

It  is  the  consciousness  of  the  American  people  that 
law  must  rest  upon  justice  and  reason,  that  the  constitu- 
tion is  a  more  ultimate  formulation  of  the  fundamental 
principles  of  justice  and  reason  than  mere  legislative  acts, 
and  that  the  judiciary  is  a  better  interpreter  of  these 
fundamental  principles  than  the  Legislature, — it  is  this 
consciousness  which  has  given  such  authority  to  the 

'  See  Constitution  of  Massachusetts,  Judiciary,  III. 


The  Law  of  Judicial  Power         133 

interpretation   of    the    Constitution    by   the   Supreme 
Court.  ^ 

Yet, — so  remarks  the  Supreme  Court  itself, — 

The  slightest  consideration  of  the  nature,  the  character, 
the  organization,  and  the  powers  of  (federal)  courts  will 
dispel  any  fear  of  serious  injury  to  the  government  at 
their  hands.  While  by  the  Constitution  the  judicial 
department  is  recognized  as  one  of  the  three  great 
branches  among  which  all  the  powers  and  functions  of 
the  government  are  distributed,  it  is  inherently  the 
weakest  of  them  all.  Dependent  as  its  courts  are  for  the 
enforcement  of  their  judgments  upon  officers  appointed 
by  the  executive  and  removable  at  pleasure,  with  no 
patronage  and  no  control  of  the  purse  or  the  sword,  their 
power  and  influence  rest  solely  upon  the  public  sense  of 
the  necessity  for  the  existence  of  a  tribunal  to  which  all 
may  appeal  for  the  assertion  and  protection  of  rights 
guaranteed  by  the  Constitution  and  by  the  laws  of  the 
land,  and  on  the  confidence  reposed  in  the  soundness  of 
their  decisions  and  the  purity  of  their  motives.^ 

114.  To  the  question,  "What  is  constitutional 
law  in  the  United  States?"  the  answer  is,  "Law  as 
interpreted  by  the  Supreme  Court."  In  other 
countries,  and,  generally  speaking,  in  all  countries 
at  all  times,  until  the  institution   of  the  political 

'  Political  Science  and  Constitutional  Law,  J.  W.  Burgess,  ii.,  365; 
"I  do  not  hesitate  to  call  the  governmental  system  of  the  United 
States  the  aristocracy  of  the  robe;  and  I  do  not  hesitate  to  pronounce 
this  the  truest  aristocracy  for  the  purposes  of  government  which  the 
world  has  yet  produced. "     Id. 

^  United  States  v.  Lee,  106  U.  S.,  196  (1882), 


134       American  Constitutional  Law 

system  of  the  United  States, — the  American  system 
of  government, — the  supreme  law  of  the  land  was  the 
will  of  the  executive  (as  in  absolute  monarchies),  or 
the  supreme  will  of  the  legislative  (as  in  Great 
Britain).  So  long  as  the  Supreme  Court  of  the 
United  States  retains  the  confidence  of  the  American 
people,  the  decisions  of  that  Court  will  remain  the 
authoritative  exposition  of  American  constitutional 
law. 

It  follows  that  the  normal  execution  of  the  judicial 
office  in  America  determines  the  meaning  of  Ameri- 
can constitutional  law;  or  stated  in  other  words,  in 
the  decisions  of  the  Supreme  Court  there  are  found 
the  formulation  of  the  principles  on  which  law  in 
America  is  founded,  and  the  application  of  these 
principles  in  testing,  as  issues  arise,  the  acts  of  the 
legislative  and  the  services  of  the  administrative. 
Therefore  it  is  to  the  interpretation  thus  given  by 
the  judiciary  that  we  turn  for  an  understanding 
of  the  exercise  of  offices, — legislative,  executive,  or 
judicial,  delegated  as  powers  by  the  sovereign,  the 
people  of  the  United  States,  Whatsoever  is  done, 
by  either  (so-called)  department  of  government  in 
conformity  with  this  delegation  of  powers  is  con- 
stitutional ;  and  whatsoever  is  done  by  either  depart- 
ment in  conflict  with  this  delegation  of  powers 
is  unconstitutional.  Whether  constitutional .  or  un- 
constitutional it  is  the  exalted  and  unique  office  of 


The  Law  of  Judicial  Power         135 

the  Supreme  Court  to  determine.  This  Court 
therefore  touches  American  life  at  every  point. 
Exhaustive  examination  of  its  interpretation  prin- 
ciples, laws,  judicial  decisions,  arguments  of  counsel, 
opinions  of  experts,  writings  of  jurists,  and  the 
history  of  society, — and  such  examination  alone, 
answers  the  question,  "What  is  constitutional  law 
in  America?" 

In  attempting,  then,  to  summarize,  the  essentials 
of  American  constitutional  law,  it  is  from  the  de- 
cisions of  the  Supreme  Court,  as  from  no  other 
source,  one  must  derive  any  authoritative  inter- 
pretation. 

115.  The  three  departments  of  government  are 
distinct. 

The  legislative  shall  never  exercise  the  executive  and 
judicial  powers,  or  either  of  them;  the  executive  shall 
never  exercise  the  legislative  or  judicial  powers,  or  either 
of  them ;  the  judicial  shall  never  exercise  the  executive  or 
legislative  powers,  or  either  of  them;  to  the  end  it  may 
be  a  government  of  laws  and  not  of  men.^ 

This  principle  of  separation  of  powers,  or  offices,  of 
government,    is,    for   many   purposes,    not    merely 

'Case  of  Supervisors  of  Elections,  114  Mass.,  247  (1873);  the 
quotation  (in  the  decision)  is  from  the  Constitution  of  Massachusetts, 
1780,  Part  I,  XXX.  "The  Government  of  the  United  States  has  been 
emphatically  termed  a  government  of  laws,  and  not  of  men." 
Marbury  v.  Madison,  i  Cranch,  163. 


136       American  Constitutional  Law 

fundamental,  but  primary,  in  American  constitu- 
tional law.  A  department  of  government  can  execute 
only  the  offices,  or  powers,  delegated  to  it,  ^  but  the 
Legislature  cannot  impose  other  than  judicial  duties 
upon  courts  of  law,  or  judicial  duties  upon  other 
than  the  judiciary.  * 

It  follows  from  this  principle  that  acts  done  by  the 
legislative,  or  the  judiciary,  or  the  executive,  in  due 
course, — that  is,  according  to  rules  of  procedure  and 
in  the  mode  required  by  law,  are  official  acts  and 
are  to  be  accredited  as  such.^  Thus  laws  which 
appear  on  the  face  of  them  to  be  attested  by  the 
proper  officials  of  the  two  Houses,  duly  signed  by  the 
Executive  (or,  passed  over  his  vote  as  provided  by 
the  Constitution),  and  published  by  the  official 
authorized  to  publish  them  are  legislative  acts, 
(laws)  in  a  constitutional  sense.  So  the  records  of 
courts  of  law  made  and  kept  in  due  procedure,  and 
officially  authenticated,  are  judicial  records  in  a 
constitutional  sense. 

116.  The  original  jurisdiction  of  the  Supreme 
Court  is  co-extensive  with  the  judicial  power  dele- 
gated by  the  Constitution.  ^  Congress  has  power 
to   give  the  inferior  courts   of  the  United  States 

'  State   ex    rel.   v.   Simons,  32   Minn.,   540   (1884).      Ex    parte 
Griffiths,  118  Indiana,  83  (1889). 
^  Idem. 

3  Harwood  v.  Wentforth,  162  U.  S.,  547  (1896). 

4  Osborn  v.  Bank  of  the  United  States,  9  Wheaton,  738  (1824). 


The  Law  of  Judicial  Power         137 

"original  jurisdiction  in  any  case  to  which  the 
appellate  jurisdiction  extends."^ 

In  all  cases  in  which  the  Constitution,  or  a  treaty, 
or  an  act  of  Congress  is  involved,  the  United  States 
through  some  one  of  its  courts  has  jurisdiction.^ 

The  exemption  of  an  ambassador,  public  minister, 
or  consul  from  suits  in  particular  courts  "is  the 
privilege,  not  of  the  person  who  happens  to  fill  the 
office,  but  of  the  State  or  government  he  represents."^ 
Consuls  are  oftentimes  citizens,  not  aliens;  any 
exemptions  or  privileges  claimed  by  such  a  person 
accrue  to  him  as  consul  being  an  alien,  not  as  consul 
being  also  a  citizen,  of  the  United  States. 

The  admiralty  jurisdiction  of  the  United  States 
extends  over  all  water  on  which  commerce  is  carried 
on  between  different  States,  or  nations.  "•  The 
principle  of  national  commercial  jurisdiction  is 
essentially  that  of  national  political  jurisdiction,  a 
jurisdiction  thus  declared : 

We  hold  it  to  be  an  incontrovertible  principle  that 
the  Government  of  the  United  States  may,  by  means  of 
physical  force,  exercised  through  its  official  agents, 
execute  on  every  foot  of  American  soil  the  powers  and 


*  Osbom  V.  Bank  of  the  United  States,  9  Wheaton,  738  (1824). 
'  Many  cases;  see  Southern  Pacific  Raih-oad  Co.  v.  California,  118 
U.  S.,  109  (1866);  Beck  V.  Perkins,  139  U.  S.,  628  (1891). 
sBors  V.  Preston,  iii  U.  S.,  252.     (1884), 
<The  steamboat  Magnolia,  20  Howard,  296  (1857). 


138       American  Constitutional  Law 

functions  that  belong  to  it.    This  necessarily  involves  the 
power  to  command  obedience  to  its  laws.  .  .  .^ 

It  is  a  fundamental  of  our  constitutional  law  that 
no  suit  can  be  maintained  against  the  United  States, 
in  any  court,  without  express  authority  of  Congress; 
and  the  United  States  cannot  be  sued  in  the  courts 
of  any  State  in  any  case,^  It  is  the  sovereign  right 
of  the  United  States  not  to  be  sued.  To  the  extent 
that  a  State  is  sovereign  it  has  the  same  right,  and 
"These  States  are  constituent  parts  of  the  United 
States.  They  are  members  of  one  great  empire — 
for  some  purposes  sovereign,  for  some  purposes 
subordinate.  "^  The  physical  boundaries  of  a  State, 
constituting  a  political,  not  a  judicial  question,  must 
be  determined  by  legislative  authority,  yet  if  the 
United  States  is  a  party  to  a  case  involving  the  issue 
of  territorial  boundary,  the  case  falls  within  the 
judicial  power, — that  is,  within  the  jurisdiction  of 
the  courts  of  the  Union. 

The  States  of  the  Union  have  agreed  in  the  Constitu- 
tion that  the  judicial  power  of  the  United  States  shall 
extend  to  all  cases  arising  under  the  Constitution,  laws, 

'  Ex  parte  Siebold,  100  U.  S.,  37  (1879).  Thus  canals  are  high- 
ways of  commerce  and  subject  to  "regulation"  by  Congress.  The 
Robert  W.  Parsons,  191  U.  S.,  17  (1903);  Ex  parte  Boyer,  109 
U.  S.,  629  (1884). 

"  Stanley  v.  Schwalby,  162  U.  S.,  255  (1896),  where  the  cases  are 
cited. 

3  Cohens  v.  Virginia,  6  Wheaton,  414  (i 821). 


The  Law  of  Judicial  Power        139 

and  treaties  of  the  United  States,  without  regard  to  the 
character  of  the  parties  (excluding  of  course,  suits  against 
a  State  by  its  own  citizens,  or  by  citizens  or  subjects  of 
foreign  states),  and  equally  to  controversies  to  which  the 
United  States  shall  be  a  party,  without  regard  to  the 
subject  of  such  controversies,  and  that  (the  Supreme 
Court)  may  exercise  original  jurisdiction  in  all  such 
cases  [in  which  a  State  shall  be  a  party]  without  exclud- 
ing those  in  which  the  United  States  may  be  the  oppo- 
site party."  ^ 

In  other  words,  the  United  States  possesses 
adequate  governmental  authority  and  jurisdic- 
tion to  secure  the  large  purposes  outlined  in  the 
Preamble  to  the  Constitution.  The  United  States 
has  judicial  jurisdiction  in  all  cases  arising  under  the 
Constitution,  the  laws  and  the  treaties  of  the  United 
States  "whoever  may  be  the  parties."^  This 
principle  is  of  far-reaching  effect;  no  party  can  be 
exempt. 

117.  A  corporation  created  by  a  State  is  a  citizen 
of  that  State  for  many  purposes,  but  cannot  be  a 
citizen  of  another  State  because  created  by  the 
former  State.  Outside  of  the  State  of  its  creation  it 
is  a  foreign  corporation  and  possesses  only  such 
privileges  as  are  granted  to  it.     This  means  that 

'United  States  v.  Texas,  143  U.  S.,  621  (1892).  The  doctrine 
also  in  South  Dakota  v.  North  Dakota,  192  U.  S.,  286  (1904). 

*  Ames  V.  Kansas,  iii  U.  S.,  449  (1884);  the  "party"  may  be  a 
State  (including  its  corporate  subdivisions),  or  a  natural  person  (or 
persons),  or  an  artificial  person  (a  corporation). 


140      American  Constitutional  Law 

rights,  privileges,  judgments  accruing  to  or  pos- 
sessed by  a  corporation,  say  created  by  Pennsylvania 
and  in  Pennsylvania,  do  not  accrue  to  and  are  not 
possessed  by  that  corporation,  say  in  Ohio,  unless 
conferred  by  Ohio  and  possessed  by  the  corporation 
within  Ohio,  under  laws  of  Ohio,  and  by  decision  of 
Ohio  courts.  The  principle  here  is  the  familiar  one 
of  jurisdiction.  No  State  has  power  beyond  its  own 
jurisdiction  and  "the  courts  of  no  country  execute 
the  penal  laws  of  another."^ 

The  suability  of  a  State  involves  its  sovereignty 
and  its  honor  and  good  faith.  The  constitutional 
law  of  America  is  that  a  State  in  the  Union  cannot  be 
compelled  to  perform  its  contracts,  although  attempts 
on  its  part  to  avoid  them  may  be  judicially  resisted, 
and  State  laws  impairing  the  obligation  of  contracts 
are  void.  Yet  the  legislative  department  of  a  State 
represents  its  polit}?-  and  its  will  and  by  every  prin- 
ciple of  justice  is  called  upon  to  hold  pubUc  obliga- 
tions inviolate. 

Any  departure  from  this  rule,  except  for  reasons  most 
cogent  (of  which  the  Legislature  and  not  the  courts,  is 
the  judge)  never  fails  in  the  end  to  inciu-  the  odium  of  the 
world,  and  to  bring  lasting  injury  upon  the  State  itself. 
But  to  deprive  the  Legislature  of  the  power  of  judging 
what  the  honor  and  safety  of  the  State  may  require, 
even  at  the  expense  of  a  temporary  failure  to  discharge 

» Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S.,  265  (1888). 


The  Law  of  Judicial  Power         141 

the  public  debts,  would  be  attended  with  greater  evils 

than  such  failure  can  cause.  ^ 

118.  The  judicial  power  of  the  United  States 
extends,  under  the  Constitution  to  controversies 
between  citizens  of  different  States  and  the  Judiciary 
Act  confers  jurisdiction  strictly  within  the  meaning 
of  the  term.  ^ 

States,  as  the  word  is  used  in  the  Constitution, 
means  only  members  of  the  Union ;  a  Territory  is  not 
a  State ;  the  citizen  of  a  Territory  is  not  a  citizen  of  a 
State  and  any  controversy  at  law  which  he  may 
have  with  another  person  is  not  "a  controversy 
between  citizens  of  different  States,"  and  therefore 
does  not  come  within  the  judicial  jurisdiction  of  the 

^Hans  V.  Louisiana,  134  U.  S.,  i  (1890).  The  history  of  the 
Eleventh  Amendment  includes  the  entire  record  as  to  suits  against 
States.  The  principles  involved  may  be  found  as  discussed  by 
Hamilton  in  The  Federalist,  No.  Ixxxi;  by  Marshall,  Madison,  Mason, 
and  Henry,  in  the  Virginia  Ratifying  Convention,  3  Elliott's  De- 
bates; in  Mr.  Justice  Iredell's  dissenting  opinion  in  Chishokn  v. 
Georgia,  2  Dallas,  419;  and  a  special  history  of  the  Amendment  in 
the  author's  Constitutional  History  of  the  United  Stales,  ii.,  264-293. 
The  Eleventh  Amendment  overruled  the  decision  in  the  Chishokn 
case.  As  to  suits  against  a  State  by  its  own  citizens  see  Railroad  Co. 
V.  Tennessee,  loi  U.  S.,  337  (1879).  The  principle  here  is  that  the 
sovereign  may  assent  to  being  sued  by  its  own  citizens, — an  assent 
declared  by  the  State  constitution,  but  available  by  the  citizen  only 
according  to  acts  of  the  Legislature.  The  privilege  (if  it  exists)  is 
statutory.  But  suit  against  an  officer,  or  agent  of  the  State, — or  of 
the  United  States,  is  not  barred  if  that  ofiBcer  exercises  a  ministerial 
function ;  such  suit  is  not  a  suit  against  the  sovereign  (United  States, 
or  State).  See  U.  S.  v.  Lee,  106  U.  S.,  196  (1882);  Cunningham  v. 
Macon  &  Bnmswick  R.  R.  Co.,  109  U.  S.,  446  (1883). 

*  Judiciary  Act,  1789,  1888  (and  so  amended.) 


142       American  Constitutional  Law 

United  vStates.     Of  course  the  limitation  applies  to 
artificial  persons, — corporations  created  by  a  State. 

A  corporation  is  not  a  citizen  of  the  State  and  it  cannot 
maintain  a  suit  in  a  court  of  the  United  States  against 
the  citizen  of  a  different  State  from  that  by  which  it  was 
chartered,  unless  the  persons  who  compose  the  corporate 
body  are  all  citizens  of  that  State.  * 

The  jurisdiction  of  American  courts  is  co-extensive 
with  the  power  that  creates  them.  Thus  the  juris- 
diction of  federal  courts  depends  in  no  way  upon 
the  State,  and  State  judges  "possess  an  absolute 
independence  of  the  United  States." 

The  Constitution  has  proceeded  upon  a  theory  of  its 
own,  and  given  or  withheld  powers  according  to  the 
judgment  of  the  American  people,  by  whom  it  was 
adopted.  We  (i.e.  the  Supreme  Court)  can  only  construe 
its  powers,  and  cannot  inquire  into  the  policy  or  principles 
which  induced  the  grant  of  them.  The  Constitution  has 
presumed  (whether  rightly  or  wrongly  we  do  not  inquire) 
that  State  attachments,  State  prejudices,  State  jealousies, 
and  State  interests,  might  sometimes  obstruct,  or  control, 
or  be  supposed  to  obstruct  or  control,  the  regular  ad- 
ministration of  justice.  Hence,  in  controversies  between 
States;  between  citizens  of  different  States;  between 
citizens  claiming  grants  under  different  States ;  between  a 
State  and  its  citizens,  or  foreigners,  and  between  citizens 
and  foreigners,  it  enables  the  parties,  under  the  authority 
of  Congress,  to  have  the  controversies  heard,  tried,  and 
determined  before  the  national   tribunals.     No  other 

'  The  Ohio  and  Mississippi  R.  R.  Co.  v.  Wheeler,  i  Black,  286 
(1861).     Hooe  V.  Jamieson,  166  U.  S.,  395  (1897). 


The  Law  of  Judicial  Power        143 

reason  than  that  which  has  been  stated  can  be  assigned, 
why  some,  at  least,  of  these  cases  should  not  have  been 
left  to  the  cognizance  of  the  State  courts.  In  respect  to 
the  other  enumerated  cases — the  cases  arising  under  the 
Constitution,  laws,  and  treaties  of  the  United  States, 
cases  affecting  ambassadors  and  other  public  ministers, 
and  cases  of  admiralty  and  maritime  jurisdiction — 
reasons  of  a  higher  and  more  extensive  nature,  touching 
the  safety,  peace,  and  sovereignty  of  the  nation,  might 
well  justify  a  grant  of  exclusive  legislation.  * 

From  the  principle  here  given  it  may  be  deduced  that 
cases  or  controversies  in  State  courts  are  removable 
from  them  into  federal  courts  if  the  case  or  con- 
troversy involves  the  Constitution,  a  treaty  or  an 
act  of  Congress.* 

But  a  prisoner  in  custody  under  the  authority  of  a 
State  should  not,  except  in  a  case  of  peculiar  urgency,  be 
discharged  by  a  court  or  judge  of  the  United  States  upon  a 
writ  of  habeas  corpus,  in  advance  of  any  proceedings  in 
the  courts  of  the  State  to  test  the  validity  of  his  arrest  or 
detention.  3 

^Martin  v.  Hunter's  Lessee,  i  Wheaton,  304  (18 16);  opinion  by 
Mr.  Justice  Story;  this  case  remains  the  leading  case  on  the  appellate 
jurisdiction  of  federal  courts.  The  appellate  jurisdiction  of  the 
courts  is  discussed  by  Marshall  in  Marbury  v.  Madison:  "The 
essential  criterion  of  appellate  jurisdiction  is  that  it  revises  and 
corrects  the  proceedings  in  a  cause  already  instituted,  and  does  not 
create  that  cause,"  Ex  parte,  Watkins,  7  Peters,  568  (1833). 

^  Gaines  v.  Fuentes,  92  U.  S.,  10  (1875).  Security  Mutual  Life 
Insurance  Company  v.  Prewitt,  202  U.  S.,  246  (1906). 

sWhitten  v.  Tomlinson,  160  U.  S.,  231  (1895).  But  as  to 
conflicting  jurisdiction  of  State  and  federal  coiuts  see  Riggs  v. 
Johnson  County,  6  Wallace,  166  (1S67). 


144       American  Constitutional  Law 

119.  A  federal  court  sitting  within  a  State  is  a 
court  of  that  State  within  the  meaning  of  the  Con- 
stitution and  laws  of  the  Union,  "and  as  such,  has 
an  equal  right  with  the  State  courts  to  fix  the  con- 
struction of  the  local  law.  "^  A  State  tribunal's 
decision  must  conform  to  that  of  the  Supreme  Court 
of  the  United  States,  but  a  federal  court  sitting 
within  a  State  follows  the  highest  State  tribunal 
unless  the  decision  of  that  tribunal  has  been  set 
aside  by  the  Supreme  Court.  Such  procedure 
"tends  to  preserve  harmony  in  the  exercise  of  the 
judicial  power,  in  the  State  and  federal  tribunals." 
This  means  that  the  statute  law  of  a  State, — and  a 
fixed  and  received  construction  by  a  State  in  its 
own  courts,  makes  a  part  of  the  statute  law, — is 
accepted  by  the  federal  courts  sitting  in  the  State. 
But  the  federal  coiirt  there  is  not  bound  to  follow 
such  State  precedents  and  authorities;  the  court 
possesses  a  jurisdiction  independent  of  that  con- 
ferred by  State  authority.^  Thus  it  may  be  stated 
as  accepted  American  constitutional  law  that  where 
there  are  two  co-ordinate  jiirisdictions,  and  es- 
pecially "with  regard  to  the  law  of  real  estate  and 
the  construction  of  State  constitutions  and  statutes'* 
and  where  are  concerned  "the  doctrines  of  com- 


» Green  v.  Neal's  Lessee,  6  Peters,  291  (1832). 
'  Idem.     The  question  is  examined  in  Pana  v.  Bowler,  107  U.  S., 
529  (1882),     Gelpoke  v.  City  of  Dubuque,  i  Wallace,  175  (1863). 


The  Law  of  Judicial  Power         145 

mercial  law  and  general  jurisprudence"  the  federal 
courts  sitting  in  a  State  exercise  their  own  judgment, 
"but  even  in  such  cases,  for  the  sake  of  harmony 
and  to  avoid  confusion,  the  federal  courts  will  lean 
towards  an  agreement  of  views  with  the  State  courts, 
if  the  question  seems  to  them  balanced  with  doubt.  "^ 
To  the  extent  that  a  federal  court  sitting  within  a 
State  follows  State  laws  and  decisions,  to  that  extent 
is  there  a  common  law  of  the  United  States.  There 
is,  however,  no  national  common  or  customary  law 
of  the  United  States;  its  law  is  statutory.  But  the 
interpretation  of  the  Constitution  by  the  judicial 
power  of  the  United  States 

is  necessarily  influenced  by  the  fact  that  its  provisions 
are  framed  in  the  language  of  the  English  common  law, 
and  are  to  be  read  in  the  light  of  its  history.  The  code 
of  constitutional  and  statutory  construction  which, 
therefore,  is  gradually  formed  by  the  judgments  of  (the 
Supreme)  Court,  in  the  application  of  the  Constitution 
and  the  laws  and  treaties  made  in  pursuance  thereof, 
has  for  its  basis  so  much  of  the  common  law  as  may  be 
implied  in  the  subject,  and  constitutes  a  common  law 
resting  on  national  authority.* 

'  Burgess  v.  Seligman,  107  U.  S.,  20  (1883).  Bucher  v.  Cheshire 
R.  R.  Co.,  125  U.  S.,  555  (1888). 

*  Smith  V.  Alabama,  124  U.  S.,  465  (1888).  Western  Union 
Telegraph  Company  v.  Call  Publishing  Company,  181  U.  S.,  92 
(1901). 

Note:  For  an  account  of  acts  of  Congress  declared  unconstitu- 
tional by  the  Supreme  Court  see  The  Supreme  Court  and  Unconstitu- 
tional Legislation,  B.  F.  Moore,  Columbia  University  Studies,  vol. 
liv.,  No.  2,  1913. 


CHAPTER  IX 

THE  LAW  OF  STATE  COMITY,  TERRITORIES   AND 
POSSESSIONS 

120.  The  States  comprising  the  Union  possess 
equal  powers  and  are  subject  to  the  same  limitations. 
This  means,  in  brief,  that  they  have,  respectively, 
the  same  jurisdiction.  The  sovereignty  of  one 
State  is  equal  to  the  sovereignty  of  another.  Because 
of  this  equality,  they  are  all  subject  to  the  same  rules 
of  State  comity.  The  aspects  of  this  mutual  equality 
are  numerous  and  are  the  subject  of  provisions  of  the 
Constitution.  ^ 

In  so  far  as  a  State  possesses  jurisdiction  it  may 
exercise  authority.*  This  rule  is  fundamental  in 
American  constitutional  law.  The  Constitution  of 
the  United  States  confers  no  new  power  of  jurisdic- 
tion by  simply  regulating  the  effect  of  the  acknowl- 
edged jurisdiction  over  persons  and  things  within  a 

*  Art.  i.,  8:  17;  9:6,  8;  10:  i,  2,  3;  Art.  iii.,2:  i,  2,  3;  Art.  iv.,  1:1; 
2.'  I,  2,3;  3:  I,  2;  4:  i;  Art.  v.,  Art.  vi.,  2,  3;  Art.  vii.,  i ;  Amendments 
VI.,  X.,  XL,  XIII.,  XIV.,  XV.,  XVI.,  XVII. 

'  Thompson  v.  Whitman,  18  Wallace,  457  (1873). 

146 


Law  of  State  Comity  147 

State."  Thus  a  State  cannot  make  its  law  valid  in 
another  State;  the  validity  of  a  State  law  depends 
upon  the  will  of  the  State  in  which  the  validity  is 
claimed.  From  this  it  follows  that  "the  jurisdic- 
tion of  any  (State)  court  exercising  authority  over  a 
subject  (i.  e.,  persons  or  property)  may  be  inquired 
into  in  every  other  (State)  court  when  the  proceed- 
ings in  the  former  are  relied  upon  and  brought  before 
the  latter  by  a  party  claiming  the  benefit  of  such 
proceedings."^ 

So,  despite  the  fourth  article  of  the  Constitution 
as  to  "full  faith  and  credit,"  and  "public  acts, 
records,  and  judicial  proceedings"  in  the  several 
States,  "a  judgment  rendered  in  any  State  may  be 
questioned  in  a  collateral  proceeding  in  another 
State.  "3 

121.  This  principle  is  disclosed  by  examination 
of  the  States  as  civil  and  political  entities,  for: 

It  is  equally  well  settled  that  the  several  States  of  the 
Union  are  to  be  considered  in  this  respect  as  foreign  to 
each  other,  and  that  the  courts  of  one  State  are  not 
presumed  to  know,  and  therefore,  not  bound  to  take 
judicial  notice  of  the  laws  of  another  State* 


» McElmayle  v.  Cohen,  13  Peters,  312.    Story,  Commentaries  on 
the  Constitution,  1313. 

^  Williamson  v.  Berry,  8  Howard,  540. 

» Thompson  v.  Whitman,  18  Wallace,  457. 

<Hanley  v.  Donaghue,  116  U.  S.,  i  (1885). 


148       American  Constitutional  Law 

Therefore,  whenever  it  becomes  necessary  for  a 
court  of  one  State,  in  order  to  give  full  faith  and 
credit  to  a  judgment  rendered  in  another  State,  to 
ascertain  the  effect  which  it  has  in  that  State,  the 
law  of  that  State  must  be  proved,  like  any  other 
fact.  ^ 

But  national  courts  are  bound  to  take  notice 
without  proof  of  the  laws  of  each  of  the  States.^ 
The  principle  is  thus  laid  down  by  Chief  Justice 
Marshall:  "The  laws  of  a  foreign  nation,  designed 
only  for  the  direction  of  its  own  affairs,  are  not  to 
be  noticed  by  the  courts  of  other  countries,  unless 
proved  as  facts.  "^  For  national  purposes  embraced 
by  the  Constitution,  the  States  and  their  citizens 
are  one,  united  under  the  same  sovereign  authority, 
and  governed  by  the  same  laws.  In  all  other  respects 
the  States  are  necessarily  foreign  to  and  independent 
of  each  other, — their  constitutions  and  forms  of 
government  being,  although  republican,  altogether 
different,  as  are  their  laws  and  institutions.  ^  In 
government,  jurisdiction  is  co-extensive  with  sover- 
eignty. Faith,  credit,  public  acts,  records,  or  judi- 
cial proceedings  that  are  valid  in  a  State  are,  when 

'  Hanley  v.  Donaghue,  116  U.  S.,  i  (1885). 

^  Idem. 

3  Talbot  V.  Seeman,  i  Cranch,  38  (1801).  The  principle  here 
declared  is  not  to  be  applied  strictly  in  extradition  cases,  whether 
between  the  several  States  or  between  the  United  States  and  another 
notion. 

<  Buckner  v,  Finley,  2  Peters,  590  (1829). 


Law  of  State  Comity  149 

proved,  valid  in  every  other  State,  and  Congress 
possesses  the  power  to  prescribe  by  general  laws  the 
manner  and  the  effect  of  proof.  This  supreme  power 
is  incidental,  as  well  as  necessary,  to  national 
sovereignty  as  realized  in  "the  more  perfect  Union."* 

122.  The  citizens  of  each  State  are  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several 
States.  ^  But  a  corporation  is  not  a  citizen,  being  but 
an  artificial  person  created  by  the  Legislature  and 
possessing  only  the  powers  and  attributes  which 
the  Legislature  has  prescribed.^  This  conclusion  is 
inevitable  from  the  principle  of  jurisdiction.  No 
State  can  create  or  give  powers  to  a  corporation  in 
another  State,  or  powers  that  will  be  valid  there. 
A  corporation  created  by  a  Legislature  has  powers 
and  privileges  only  within  the  jurisdiction  of  that 
Legislature;  or,  as  is  said:  "The  corporation  being 
the  mere  creation  of  local  law,  can  have  no  legal 
existence  beyond  the  limits  of  the  sovereignty  where 
created."''  Thus  a  State  may  admit  or  exclude 
foreign  corporations,  and  the  corporation  cannot 
maintain  a  claim  of  citizenship  to  right  to  enter  the 
State. 

123.  The  words  "privileges  and  immunities  of 
citizens"  are  of  comprehensive  meaning  as  deter- 

^  Buckner  v.  Finley,  2  Peters,  590  (1829). 

^  Art.  iii.,  2:  i. 

3  Paul  V.  Virginia,  8  Wallace,  168  (1868).  *  Idem 


150       American  Constitutional  Law 

mined  by  the  courts  from  time  to  time  as  issues 
(cases  or  controversies)  come  before  them.  The 
clause  in  the  Constitution 

plainly  and  unmistakably  secures  and  protects  the  right 
of  a  citizen  of  one  State  to  pass  into  any  other  State  of 
the  Union  for  the  purpose  of  enjoying  in  lawful  com- 
merce, trade,  or  business,  without  molestation;  to  acquire 
personal  property;  to  take  and  hold  real  estate;  to  main- 
tain actions  in  the  courts  of  the  State,  and  to  be  exempt 
from  any  higher  taxes  or  excises  than  are  imposed  by  the 
State  upon  its  own  citizens.^ 

Or,  as  the  principle  is  further  stated :  the  sole  purpose 
of  the  constitutional  provision  is 

to  declare  to  the  several  States,  that  whatever  those 
rights  {i.  e.,  the  rights  of  citizens  of  that  State), — as  you 
grant  or  establish  them  to  your  own  citizens,  or  as  you 
limit  or  qualify,  or  impose  restrictions  on  their  exercise, 
the  same,  neither  more  nor  less,  shall  be  the  measure  of 
the  rights  of  citizens  of  other  States  within  your  own 
jurisdiction.^ 

But  the  citizen  from  another  State  must  comply 
with  the  laws  of  the  State  into  which  he  comes 
before  he  can  have  the  protection  of  its  sovereignty. 

The  Constitution  forbids  only  such  legislation  affect- 
ing citizens  of  the  respective  States  as  will  substantially 
or  practically  put  a  citizen  of  one  State  in  a  condition  of 

'Ward  V.  Maryland,  12  Wallace,  418. 

^  Slaughter  House  Cases,  16  Wallace,  77  (1872).  Blake  v. 
McClung,  172  U.  S.,  239  (1898). 


Law  of  State  Comity  151 

alienage  when  he  Is  within,  or  when  he  removes  to, 
another  State,  or  when  asserting  in  another  State  the 
rights  that  commonly  appertain  to  those  who  are  part  of 
the  political  community  known  as  the  People  of  the 
United  States,  by  and  for  whom  the  government  of  the 
Union  was  ordained  and  established.^ 

124.  The  test  here  is  jurisdiction.  No  State  has 
jurisdiction  that  is  denied  it  by  the  Constitution  of 
the  United  States.  Each  State  has  power  so  far  as  its 
jurisdiction,  or  sovereignty,  extends,  to  declare  what 
shall  be  offences  against  its  laws,  and  citizens  of  other 
States  within  its  jurisdiction  are  subject  to  those 
laws. ' 

Fugitives  from  justice  escaping  from  a  State  or 
Territory  to  another  are  subject  to  extradition.^ 
Upon  the  Executive  of  the  State  or  Territory  in 
which  the  accused  is  found  rests  the  responsibility  of 
determining,  in  some  legal  mode,  whether  he  is  a 
fugitive  from  the  justice  of  the  demanding  State. 
It  is  within  the  jurisdiction  of  the  State  or  Territory 
into  which  the  accused  has  fled  to  demand  competent 
proof  that  he  is  in  fact  a  fugitive  from  the  demanding 
State;  otherwise  the  jurisdiction  of  the  demanding 
State  would  extend  over  the  State  or  Territory  into 
which  the  accused  has  fled.     But  such  proof  being 

I  Blake  v.  McClung,  supra. 

^  Ex  parte  Reggel,  114  U.  S.,  642  (1885).  Pennoyer  v.  NeflE,  95 
U.  S.,  714  (1877). 

3  Art.  iv.,  2:  2.    Revised  Statutes,  §§  5278,  5279. 


152       American  Constitutional  Law 

established,  the  accused  "shall  be  delivered  up"  as 
the  federal  Constitution  prescribes.  ^  The  principle 
here  is  that  of  State  jurisdiction  as  limited  by  the 
supreme  law. 

125.  But  the  question  of  powers,  or  rights,  by  ex- 
tradition, raises  the  question  of  right  of  asylum.     Do 

the  States  of  the  Union  occupy  towards  each  other,  in 
respect  to  fugitives  from  justice,  the  relation  of  foreign 
nations,  in  the  same  sense  in  which  the  general  govern- 
ment stands  towards  independent  sovereignties,  on  that 
subject;  and,  in  the  ftirther  assumption  that  a  fugitive 
from  justice  acquires  in  the  State  to  which  he  may  flee 
some  State  or  personal  right  of  protection,  improperly 
called  a  right  of  asylum,  which  secures  to  him  exemption 
from  trial  and  punishment  for  a  crime  committed  in 
another  State,  unless  such  crime  is  made  the  special 
object  or  ground  of  his  rendition?* 

To  answer  this  question  in  the  affirmative  is  to 
violate  the  sole  object  of  the  Constitution  and  acts  of 
Congress  concerning  the  surrender  of  fugitives  from 
justice.  Foreign  nations  stand  in  treaty  relations 
with  the  United  States  and  with  each  other.  The 
States  composing  the  American  Union  do  not  stand, 
and  by  the  Constitution,  cannot  stand  in  treaty 
relations  with  one  another  or  with  any  other  State 
or  power.  3 

'  Ex  parte  Reggel,  supra. 

'  Lascelles  v.  Georgia,  148  U.  S.,  537  (1893). 

»Art.  i.,  10:  I. 


Law  of  State  Comity  153 

126.  A  fugitive  from  a  foreign  nation  seeking 
refuge  in  the  United  States  is  not  extraditable  unless 
by  the  terms  of  the  treaty  between  that  nation  and 
the  United  States.  There  is  nothing  in  the  Constitu- 
tion, or  in  the  Statutes  at  large  of  the  United  States 
in  reference  to  interstate  rendition  of  fugitives  from 
justice  which  can  be  regarded  as  establishing  any 
compact  between  the  States  of  the  Union  (such  as 
a  treaty  between  the  United  States  and  another 
nation  does  or  may  contain),  limiting  their  operation 
to  particular  or  designated  offenses.  And  it  is 
questionable  whether  the  States,  or  any  of  them, 
could  constitutionally  enter  into  any  agreement  or 
stipulation  one  with  another  for  the  purpose  of 
defining  or  limiting  the  offenses  for  which  fugitives 
would  or  should  be  surrendered.  "The  plain  answer 
is  that  the  laws  of  the  United  States  do  not  recognize 
any  right  of  asylum  on  the  part  of  the  fugitive  from 
justice  in  any  State  to  which  he  has  fled.  "^  The 
principle  here  laid  down  finds  further  explication: 
To  apply  the  rule  of  international,  or  foreign  extradi- 
tion to  interstate  rendition  involves  the  confusion  of 
two  essentially  different  things,  which  rest  upon 
entirely  different  principles.^  In  the  former,  the 
extradition  depends  upon  treaty  contract,  or  stipula- 

'  Lascelles  v.  Georgia,  supra.  In  international  law  the  right  of 
extradition  does  not  include  fugitives  for  political  offenses.  This 
exemption  is  an  incident  of  sovereignty. 

*  Consult  United  States  v.  Rauscher,  119  U.  S,,  407. 


154       American  Constitutional  Law 

tion,  which  rests  upon  good  faith,  and  in  respect  to 
which  the  sovereign  upon  whom  the  demand  is  made 
can  exercise  discretion,  as  well  as  investigate  the 
charge  on  which  the  surrender  is  demanded,  there 
being  no  rule  of  comity  under  and  by  nature  of  which 
independent  nations  are  required  or  expected  to 
withhold  from  fugitives  within  their  jurisdiction  the 
right  of  asylum.  In  the  matter  of  interstate  ren- 
dition, however,  there  is  the  binding  force  and  obliga- 
tion, not  of  contract,  but  of  the  supreme  law  of  the 
land,  which  imposes  no  conditions,  or  limitations, 
upon  the  jurisdiction  and  authority  of  the  State  to 
which  the  fugitive  is  returned.' 

127.  The  decision  as  to  whether  a  State  possesses 
a  republican  form  of  government, — or  what  govern- 
ment in  a  State  is  the  lawful  government  rests  with 
the  political,  not  the  judicial  power.  "It  is  the 
province  of  the  court  to  expound  the  law,  not  to 
make  it.  "^  Thus  the  courts  follow  the  political 
authority. 

In  the  case  of  foreign  nations,  the  government  ac- 
knowledged by  the  President  is  always  recognized  in  the 
courts  of  justice;  and  this  principle  has  been  applied,  by 
the  act  of  Congress,  to  the  sovereign  States  of  the  Union.  ^ 

If  the  President  errs,  it  is  within  the  power  of  Con- 
gress to  apply  the  proper  remedy.     ' '  The  sovereignty 

'  Lascelles  v.  Georgia,  supra. 

^  Luther  v.  Borden,  7  Howard,  1  (1848).  i  Idem. 


Law  of  State  Comity  155 

in  every  State  resides  in  the  people  of  that  State, 
and  they  may  alter  and  change  their  form  of  govern- 
ment at  their  own  pleasure."^  But  the  United 
States  guarantees  to  each  a  republican  form  of 
government.^  "No  particular  government  is  de- 
signated as  republican,  neither  is  the  exact  form  to  be 
guaranteed  in  any  manner  especially  designated.  "^ 

The  guarantee  necessarily  implies  a  duty  on  the  part  of 
the  States  themselves  to  provide  such  a  government. 
All  the  States  had  governments  when  the  Constitution 
was  adopted.  In  all,  the  people  participated  to  some 
extent,  through  their  representatives  elected  in  the 
manner  specially  provided.  These  governments  the 
Constitution  did  not  change.  They  were  accepted 
precisely  as  they  were,  and  it  is,  therefore,  to  be  presumed 
that  they  were  such  as  it  was  the  duty  of  the  States  to 
provide.  Thus  we  have  unmistakable  evidence  of  what 
was  republican  in  form,  within  the  meaning  of  that 
term,  as  employed  in  the  Constitution.'* 

Conformably  with  the  character  of  this  federal 
guarantee  of  the  republican  form,  the  Supreme  Court 
has  decided  that: 

In  the  Constitution  the  term  State  most  frequently 
expresses  the  combined  idea  ...  of  people,  territory, 
and  government.  A  State,  in  the  ordinary  sense  of  the 
Constitution,  is  a  political  community  of  free  citizens, 
occupying  a  territory  of  defined  boundaries,  and  or- 


»  Luther  v.  Borden,  7  Howard,  i  (iJ 

*Art.  iv.,  4:  I. 

'Minor  p.  Happersett,  21  Wallace,  162  (1874),  *Idem. 


156       American  Constitutional  Law 

ganized  under  a  government  sanctioned  and  limited  by  a 
written  constitution,  and  established  by  the  consent  of 
the  governed.  It  is  the  union  of  such  States,  under  a 
common  Constitution,  which  forms  the  distinct  and 
greater  political  unit,  which  that  Constitution  designates 
as  the  United  States,  and  makes  of  the  people  and  States, 
which  compose  it,  one  people  and  one  country.  .  .  . 
The  preservation  of  the  States,  and  the  maintenance  of 
their  government,  are  as  much  within  the  design  and 
care  of  the  Constitution  as  the  preservation  of  the  Union 
and  the  maintenance  of  the  national  government.  The 
Constitution,  in  all  of  its  provisions,  looks  to  an  inde- 
structible Union  of  indestructible  States.'' 

The  constitutional  rules  of  State  comity  are 
therefore  rules  of  national  jurisdiction,  and  operate  as 
limitations  on  the  jurisdiction  of  the  several  States. 
The  piirpose  of  these  rules,  as  that  of  every  rule 
of  that  jurisdiction  is  essentially  to  preserve  that 
jurisdiction,  or  sovereignty, — and  is  sufficiently  in- 
dicated in  the  Preamble  to  the  Constitution.  ^ 

128.  The  admission  of  a  new  State  into  the  Union 
is  a  political  act  exclusively  within  the  power  of 
Congress,  save  that  no  new  State  shall  be  erected 
within  the  jurisdiction,  or  by  the  conjunction,  of 
States  or  parts  of  States,  without  the  consent  of  the 

^  Texas  v.  White,  7  Wallace,  700  (1868). 

^  There  are  many  cases  expository  of  this  principle:  McCulloch 
V.  Maryland,  4  Wheaton,  316;  Barron  v.  Baltimore,  7  Peters,  243; 
Slaughter  House  Cases,  16  Wallace,  36;  United  States  v.  Cruik- 
shank,  92  U.  S.,  542;  Ex  parte  Siebold,  100  U.  S.,  371;  Fong  Yue 
Ting  V.  U.  S.,  149  U.  S.,  698;  Legal  Tender  Cases,  12  Wallace,  457. 


Law  of  State  Comity  157 

Legislatures  of  the  States  concerned,  as  well  as  of 
Congress.^  This  entire  act  is  exclusively  political, 
but  the  State  once  admitted  into  the  Union  comes 
within  the  jurisdiction  of  the  United  States  as  the 
Constitution  provides.  ^^  The  State  thus  admitted 
becomes  entitled  to  and  possesses  all  rights  of 
sovereignty  and  dominion, — that  is,  rights  of  juris- 
diction, which  belonged  to  the  original  States.  ^ 

129.  The  act  enabling  the  inhabitants  of  a  Terri- 
tory to  adopt  a  constitution  and  become  a  State 
in  the  Union  usually  prescribes  that  the  proposed 
constitution  and  government  shall  be  republican  in 
form,  shall  make  no  distinction  in  civil  or  political 
rights  on  account  of  race  or  color,  shall  not  be  repug- 
nant to  the  Constitution  of  the  United  States,  or  to 
the  principles  of  the  Declaration  of  Independence, 
and  shall  comply  with  such  conditions  as  Congress 
at   the   time   may   propose.  ^     On   June    16,    1906, 

'Art.  iv,,  3:  I. 

^Art.  iii.;  Art  iv.  §  lo;  Amendments  VI.,  X.,  XL,  XIII.,  XIV., 
XV.,  XVII.,  and  doubtless  also  in  the  matter  of  federal  elections 
(election  of  members  of  the  House  of  Representatives,  and  of  United 
States  Senators)  as  by  Wiley  v.  Sinkler,  179  U.  S.,  58;  Ex  parte  Yar- 
brough,  no  U.  S.,  651,  and  in  all  other  Federal  relations. 

3  Sands  v.  Manistee  Improvement  Company,  123  U.  S.,  288  (1887). 

4  If  admitted  by  Proclamation  of  the  President  (and  so  Congress 
may  provide)  conformity  to  conditions  imposed  is  duly  announced 
by  him.  The  enabling  acts  since  1789  vary  in  content.  They  are 
reprinted  in  The  Federal  and  State  Constitutions,  Colonial  Charters, 
and  other  Organic  Laws  of  the  States,  Territories  and  Colonies  Forming 
the  United  States  of  America.  7  vols.  Washington,  Government 
Printing  Office  1909. 


158       American  Constitutional  Law 

Congress  passed  an  enabling  act  under  which,  four 
years  later,  Arizona  sought  admission  into  the  Union. 
The  new  constitution  submitted  to  Congress  provided 
for  state-wide  recall  of  State  officials.  To  this  pro- 
vision Congress  objected  and  made  the  admission 
of  the  Territory  conditional  upon  the  amendment  of 
its  proposed  constitution  by  eliminating  the  ob- 
jectionable provision.  Arizona  complied  with  the 
congressional  condition  and  was  admitted;  there- 
upon speedily  amended  its  constitution  by  re-insert- 
ing the  objectionable  clauses.  Congress  has  no 
power  to  impose  conditions,  clauses,  or  provisions 
upon  the  constitution  of  a  State;  yet,  a  provision  of  a 
State  constitution  in  conflict  with  the  Constitution 
of  the  United  States  is  niill  and  void.  ^ 

130.  As  the  Union  is  an  indestructible  Union  of 
indestructible  States,  it  is  a  principle  of  American 
constitutional  law:  once  a  State,  always  a  State. 
The  inhabitants  of  a  Territory  having  been  erected 
by  Congress  into  inhabitants  of  a  State,  territorial 
jurisdiction,  created  by  act  of  Congress  ceases,  and 
State  jurisdiction  exists.  It  is  this  State  jurisdiction 
in  the  Union   which  is  indestructible,   which  can 

»  The  provision  of  the  Ohio  constitution  of  19 12  limiting  the  right 
to  vote  to  "white  male  citizens  of  the  United  States"  (Ohio,  Art.  v., 
§  i)  citizens  with  the  Fifteenth  Amendment  of  the  national  Consti- 
tution. The  power  of  the  Judiciary  of  the  United  States  to  declare 
constitutions  and  laws  that  are  repugnant  to  the  Constitution  of  the 
United  States  imconstitutional,  nuU,  and  void  is  discussed  in  the 
preceding  chapter. 


Law  of  State  Comity  159 

neither  be  extended,  nor  diminished  by  Congress. 
The  equality  and  equivalency  of  the  States  in  the 
Union  is  a  fundamental  in  American  constitutional 
law.  The  jurisdiction  of  a  Territory  differs  from  that 
of  a  State  as  a  governed  differs  from  a  self-governing 
community. 

131.  Congress  has  power  "to  make  all  needful 
rules  and  regulations  respecting  the  territory  and 
other  property  belonging  to  the  United  States."^ 
This  means  the  power  to  govern,  a  power  necessary 
to  sovereignty,  and  the  "inevitable  consequence  of 
the  right  to  acquire  territory;  or,  as  the  jurisdiction 
over  a  Territory  does  not  belong  to  any  State  in  the 
Union,  its  government  lies  by  implication  (if  not  by 
necessity)  with  the  United  States.  ^ 

In  creating  a  territorial  jurisdiction,  Congress 
exercises,  but  does  not  part  with  its  powers.  The 
power  to  govern  Territories  is  not  conditioned.  Such 
Territories 

are  but  political  subdivisions  of  the  outlying  dominion  of 
the  United  States.  Their  relation  to  the  general  govern- 
ment is  much  the  same  as  that  which  counties  bear  to 
the  respective  States,  and  Congress  may  legislate  for 
them  as  a  State  does  for  its  municipal  organizations. 
The  organic  law  ("enabling  act")  for  a  Territory  takes 
the  place  of  a  constitution  as  the  fundamental  law  of  the 

^  Art.  iv.,  3:  2. 

^American  Insurance  Company  v.  Canter,  I  Peters,  551  (1828). 
National  Bank  v.  County  of  Yankton,  loi  U.  S.,  129  (1879). 


i6o       American  Constitutional  Law 

local  government.  It  is  obligatory  on,  and  binds  the 
territorial  authorities;  but  Congress  is  supreme,  and  for 
the  purposes  of  this  department  of  its  governmental 
authority,  has  all  the  powers  of  the  people  of  the  United 
States,  except  such  as  have  been  expressly,  or  by  implica- 
tion reserved  in  the  prohibitions  of  the  Constitution.^ 

132.  Congress  has  full  and  complete  legislative 
authority  over  the  people  of  the  Territories,  and  all 
departments  of  the  territorial  government.  It  may 
do  for  the  Territories  what  the  people  under  the 
Constitution  of  the  United  States  may  do  for  the 
States.  That  the  Supreme  Court  in  1901  gave  a 
new  meaning  to  the  jurisdiction  of  Congress  over 
territory  belonging  to  the  United  States  is  now  a 
matter  of  history.  By  that  decision  the  power  to 
govern  is  co-extensive  with  the  power  to  acquire 
territory, — and  this  means  sovereignty.  Territorial 
acquisitions  are  wholly  subject  to  the  will  of  Con- 
gress. It  may  govern  them  as  it  sees  fit.  States,  not 
Territories,  are  guaranteed  by  the  United  States 
"a  republican  form  of  government."  The  word 
"citizens"  as  used  in  the  Constitution  does  not 
include  inhabitants  of  such  Territories.* 

'  National  Bank  v.  County  of  Yankton,  supra.  But  all  rights 
commonly  known  as  fundamental  do  not  work  as  limitations  of  the 
power  of  Congress  to  govern  Territories  or  "outlying  possessions"; 
see  Downes  v.  Bidwell,  182  U.  S.,  244  (1901).  Until  this  decision 
these  fundamental  rights  were  construed  as  limitations  of  the  power  of 
Congress  in  its  government  of  Territories;  see  Callan  v.  Wilson,  127 
U.  S.,  540  (1888).     Thompson  v.  Utah,  170  U,  S.,  343  (1898). 

*  Downes  v.  Bidwell,  supra,  and  supporting  cases. 


Law  of  State  Comity  i6i 

The  Constitution  of  the  United  States  was  ordained 
and  established  by  the  people  of  the  United  States  for 
themselves,  for  their  own  government,  and  not  for  the 
government  of  the  individual  States.  Each  State  estab- 
lished a  constitution  for  itself,  and,  in  that  constitution, 
provided  such  limitations  and  restrictions  on  the  powers 
of  its  particular  government  as  its  judgment  dictated. 
The  people  of  the  United  States  framed  such  a  govern- 
ment for  the  United  States  as  they  supposed  best 
adapted  to  their  situation,  and  best  calculated  to  promote 
their  interests.  The  powers  they  conferred  on  this 
government  were  to  be  exercised  by  itself;  and  the  limi- 
tations on  power,  if  expressed  in  general  terms,  are 
naturally,  and  we  think  necessarily,  applicable  to  the 
government  created  by  the  instrument.  ^ 


But  the  government  thus  formed  under  the  Con- 
stitution is  the  government  of  "the  more  perfect 
Union,"  which  is  an  "indestructible  Union  of  in- 
destructible States."  By  constitutional  law,  in- 
destructibility is  not  a  quality  of  any  territory  under 
the  jurisdiction  of  the  United  States. 

133.  The  rights  of  the  inhabitants  of  such  terri- 
tory are  determined  by  Congress.  This  power  of 
Congress  seems  unlimited,  but  the  Supreme  Court  of 
the  United  States  disclaims  "any  intention  to  hold 
that  the  inhabitants  of  these  territories  are  subject 
to  an  unrestrained  power  on  the  part  of  Congress  to 
deal  with  them  upon  the  theory  that  they  have  no 

*  Barron  v.  Baltimore,  7  Peters,  243  (1833). 
II 


i62       American  Constitutional  Law 

rights  which  it  is  bound  to  respect. "'     What  limita- 
tion then,  if  any,  is  there  on  Congress,  in  exercising 
its  powers  over  such  territory? 
The  Court  replies: 

There  are  certain  principles  of  natural  justice  inherent 
in  the  Anglo-Saxon  character,  which  need  no  expression 
in  constitutions  or  statutes  to  give  them  effect  to  secure 
dependencies  against  legislation  manifestly  hostile  to 
their  real  interests. ' 

But  the  power  of  Congress  to  govern  Territories, 
("dependencies,"  "outlying  possessions")  is,  by 
present  constitutional  law,  exercisable  at  the  will  of 
Congress.  3  The  essential  matter  is  of  jurisdiction. 
The  United  States  is  a  sovereignty ;  for  some  purposes 
the  several  States  comprising  the  Union  are  sover- 
eign,'' but  according  to  American  constitutional  law, 
a  Territory,  dependency,  or  outlying  possession 
belonging  to  the  United  States  is  not  sovereign,  and 
possesses  no  powers,  rights,  privileges,  or  attributes 
of  sovereignty.     The  principle  may  be  stated  thus: 

»  Downes  v.  Bidwell,  supra. 

''Idem.  In  Brown  v.  Walker,  i6i  U.  S.,  591  (1896),  (i.  e.,  five 
years  before  the  decision  in  Downes  v.  Bidwell),  the  Court  declared: 
"The  object  of  the  first  eight  amendments  to  the  Constitution  was  to 
incorporate  into  the  fundamental  law  of  the  land  certain  principles 
of  natural  justice  which  had  become  permanently  fixed  in  the  juris- 
prudence of  the  mother  country,  etc. " 

J  The  dissenting  opinions  in  Downes  v.  Bidwell  should  be  read; 
powerful  as  they  are,  they  are  not  the  opinion  of  the  Court  and  do  not 
declare  what  the  law  is. 

*  Cohens  v.  Virginia,  6  Wheaton,  414  (1821). 


Law  of  State  Comity  163 

To  whatsoever  extent  Congress  exercises  jurisdiction, 
to  that  extent  it  governs ;  its  functions  are  legislative 
and  essentially  political;  to  the  extent  that  they  are 
political  they  are  sovereign.  ^ 

'  The  power  of  Congress  over  territory  incorporated  into  the 
United  States, — that  is,  over  territory  over  which  the  Constitution 
has  been  extended  by  Congress  is  limited  by  the  Constitution: 
Thompson  v.  Utah,  170  U.  S.,  343  (1898).  Rasmussen  :;.  United 
States,  197  U.  S.,  516  (1905);  but  over  territory  not  so  incorporated, 
see  Hawaii  v.  Mankichi,  190  U.  S.,  197  (1903);  Dorr  v.  U.  S.,  195  U. 
S.,  138  (1904).  The  decisions  support  the  doctrine  that  once  the 
Constitution  has  been  extended  over  territory,  it  cannot  be  with- 
drawn (Downes  i;.  Bidwell)  and  consequently,  all  the  limitations 
which  by  the  Constitution  a£Fect  Congress  operate  as  limitations  of 
its  power  over  the  territory,  and  therefore  operate  as  fundamental 
rights  and  privileges  of  the  inhabitants  of  such  territory. 


CHAPTER  X 

THE  LAW  OF  LIMITATIONS 

134.  The  government  of  the  United  States,  as 
also  that  of  each  State,  is  a  government  of  limited 
powers.  In  our  day  we  speak  of  either  government 
as  one  of  limitations;  in  the  eighteenth  century  the 
equivalent  expression  was  "checks  and  balances."^ 
Fundamentally,  American  constitutional  law  is  the 
law  of  constitutional  Umitations.  These  limitations 
confront  us  at  whatever  point  we  consider  American 
law  and  government.  Sovereignty, — the  people  of 
the  United  States,  or  the  people  of  a  State, — has 
never  delegated  all  its  powers  to  government,  and 
never  any  of  them  without  limitations.^  Written 
constitutions  are  limitations  of  delegated  powers. 
But  powers  delegated  to  what  we  commonly  call  a 
department, — as  the  legislative,  the  executive,  or 
the  judicial, — are  sufficient  for  the  necessary  and 
proper  performance  of  the  functions  (or  as  constitu- 
tional law  would  say,    "execution  of  the  office") 

»  So  throughout  The  Federalist,  and  notably  in  Nos.  xliv.,  xlv.,  li. 

*  But  note  the  Sixteenth  Amendment. 

164 


The  Law  of  Limitations  165 

of  the  department.  This  concept  of  the  nature 
of  the  grant  of  powers  is  fundamental;  on  no  other 
concept  of  power  can  government  in  America  be 
operated. 

It  remains  then  to  know  the  scope  and  char- 
acter of  these  checks  and  balances,  —  these 
limitations, — which,  however  obsctue,  distinguish 
constitutional  law  and  government  in  America.  In 
the  federal  system,  the  government  of  the  United 
States  is  balanced  against  that  of  the  States,  the 
office,  or  function  of  the  one,  operating  as  a  Hmitation 
on  the  office  or  function  of  the  other.  This,  un- 
questionably, is  the  essential,  or  principal  Hmitation 
in  the  American  civil  system.  It  discloses  itself  in 
the  frequent  question  whether  a  public  service  shall 
be  done  by  the  United  States  or  by  the  State, — 
touching  such  matters  as  public  health,  public 
safety,  public  morals,  commerce,  labor,  and  others. 
Here  there  always  is  the  question  of  authority, 
whether  it  is  State  or  federal,  and,  if  any,  to  what 
extent?  And  if  there  is  limitation,  is  it  of  State 
authority  by  federal,  or  of  federal  authority  by 
State, — or,  is  it  of  both  by  fundamental  limitations  ? 

Passing  the  mutual  limitation  of  the  two  govern- 
ments, we  come  to  limitations  of  each,  and  these 
limitations  are  similar.  Powers  of  the  Senate  counter- 
balance powers  of  the  House;  powers  of  the  Legislative 
counterbalance  those  of  the  Executive ;  powers  of  the 


i66      American  Constitutional  Law 

Judicial  counterbalance  powers  of  the  Executive 
and  the  Legislative.  If  the  President  nominates, 
the  Senate  may  refuse  to  conform;  if  he  negotiates 
a  treaty,  the  Senate  may  refuse  to  ratify  it.  If 
President  or  federal  Judge  fails  to  execute  his 
office,  the  House  may  impeach,  and  the  Senate 
convict  of  "high  crimes  and  misdemeanors."  If 
members  of  Senate  or  House  fail  to  satisfy  their 
constituents,  these  may  elect  other  men  as  their 
successors.  No  office  in  the  American  system  of 
government  is  for  life,  though  it  may  be  for  good 
behavior.     Lincoln  states  the  whole  case : 

By  the  frame  of  government  under  which  we  live, 
this  same  people  have  wisely  given  their  public  servants 
but  little  power  for  mischief;  and  have,  with  equal  wis- 
dom, provided  for  the  return  of  that  little  into  their  own 
hands  at  very  short  intervals.  While  the  people  retain 
their  virtue  and  vigilance,  no  administration  by  any 
extreme  of  wickedness  or  folly,  can  very  seriously  injure 
the  government  in  the  short  space  of  four  years. ' 

135.  Of  checks  on  the  Executive  there  are  three: 
concerning  his  election;  concerning  his  powers,  or 
office,  and  concerning  his  removal  from  office.  He 
is  elected  by  a  few  persons,  technically  called 
* '  electors. ' '  =*  Each  State  appointing  as  its  Legislature 
may  direct  as  many  "electors"  as  the  whole  number 
of  its  Senators  and  Representatives  to  which  it  is 

'  First  Inaugural.     Works  (Century  Ed.),  ii.,  7. 
'  Art.  ii.,  I  :  2;  Amendment  XII. 


The  Law  of  Limitations  167 

entitled  in  Congress.  Popular  election  of  these 
"electors"  is,  in  constitutional  law,  their  appoint- 
ment by  the  State  legislatures.  The  so-called  popu- 
lar vote  is  unknown  to  the  Constitution.  ^ 

The  method  of  deciding  disputed  presidential 
elections,  provided  in  the  Constitution,  was  modified 
by  adoption  of  the  Twelfth  Amendment  in  1804. 
The  Amendment  means  that  if  the  decision  is  not 
made  by  the  presidential  electors  by  a  certain  time, 
the  election  shall  go  to  the  House  of  Representatives, 
in  case  of  the  President;  and  to  the  Senate,  in  case 
of  the  Vice-President.  The  vote  in  the  House  is 
by  States;  the  Senators  represent  States.  Thus  the 
States,  at  a  critical  time,  become  the  check  on  the 
United  States  in  the  selection  of  President  and 
Vice-President. 

That  the  President  (and  by  implication,  the  Vice- 
President)  must  be  native-bom  American  citizens  is  a 
constitutional  limitation  of  candidacy. 

136.     Of    limitation    of    executive    powers,    the 

'  In  1787  distrust  of  the  people,  among  the  framers  of  the  Con- 
stitution, explains  the  constitutional  provision.  James  Wilson 
urged  election  of  the  President  by  popular  vote.  South  Carolina  in 
i860  was  the  last  State  to  appoint  presidential  electors  by  its  Legisla- 
ture. There  is  widespread  belief  in  America  now  that  the  President 
should  be  elected  by  direct  popular  vote,  as  are  Congressmen  and 
United  States  Senators.  At  present  the  "electoral  vote"  is  531 ;  the 
person  receiving  the  majority  of  these  531  votes  is  President  of  the 
United  States.  By  American  laws  there  are  upwards  of  20,000,000 
voters;  by  American  constitutional  law,  the  person  receiving  266 
"electoral"  votes  is  President. 


i68       American  Constitutional  Law 

exception  of  the  pardoning  power  in  cases  of  im- 
peachment, and  of  command  of  the  State  militia  save 
when  called  into  the  actual  service  of  the  United 
States^  are  specified, — or,  as  commonly  stated  in 
legal  language, — "expressed,"  not  "implied."  So 
too  is  the  limitation  of  the  President's  appointing 
power  during  recess  of  the  Senate, — the  appointee's 
commission  expiring  "at  the  end  of  the  next  session."' 
What  limitations  of  executive  power  are  implied  in 
the  Constitution  is  largely  a  matter  of  political 
interpretation.  The  practical  question  here  is  of 
confusion  of  functions,  or  offices.  Thus  the  Executive 
may  not  exercise  legislative  or  judicial  functions. 
This  conforms  to  the  theory  of  separation  of  govern- 
mental functions  expressed  or  implied  in  every 
American  constitution. 

Yet  Congress  may  impose  duties  upon  the  President 
which  are  essentially  legislative,  as,  for  example, 
by  empowering  him  to  suspend,  by  proclamation, 
the  collection  of  duties  on  articles  from  a  nation 
which,  by  reciprocity,  has  suspended  collection  of 
duties  on  certain  imports  from  the  United  States. 
Does  the  President  in  such  a  case  transcend  execu- 
tive office? 

The  true  distinction  is  between  the  delegation  of 
power  to  make  the  law,  which  necessaril}'-  involves  a 

» Art.  ii.,  2:1.  \Id.  3. 


The  Law  of  Limitations  169 

discretion  as  to  what  it  shall  be, — and  conferring  author- 
ity, or  discretion  as  to  its  execution,  to  be  exercised  under 
and  in  pursuance  of  the  law.  The  first  cannot  be  done; 
to  the  latter  no  valid  objection  can  be  made.^ 

A  very  large  proportion  of  the  bills  presented  to 
Congress  originate  in  the  executive  department. 
But  Judge  Ranney's  distinction  (stated  above) 
expresses  the  essential  difference:  it  is  Congress 
that  determines  what  the  law  shall  be.  The  bill,  or 
measure,  proposed,  may  come  from  a  private  citizen, 
or  a  State  Legislature,  or  a  railroad  directorate,  or  the 
War  Department,  or  a  Committee  of  the  House,  or 
from  some  other  source:  it  is  Congress  alone  that 
can  make  it  law.  There  is,  however,  a  powerful 
check  on  the  Executive  as  suggesting  legislation: 
the  check  of  public  opinion,  of  custom,  of  precedent. 
These  and  like  checks  are  sometimes  called  the 
limitations  of  the  unwritten  constitution. 

137.  The  third  check  on  the  Executive  is  of  re- 
moval from  office  for  cause,  by  impeachment,  in 
which  procedure  the  House,  the  Senate,  and  the 
Chief  Justice  of  the  United  States  have  definite 
offices.  *     Practically  this  check  is  utilized  on  political 

'Cincinnati,  Wilmington,  etc.,  R,  R.  Co.  v.  Commissioners,  i 
Ohio  St.,  88;  and  see  a  full  discussion  of  the  issue  in  Field  v.  Clark, 
143  U.  S.,  649  (1892). 

Thus  technically,  the  veto  power  is  not  a  legislative  but  an  execu- 
tive power,  though  it  is  common  to  speak  of  the  participation  of  the 
executive  in  legislation. 

^  Art.  i.,  2  :  5 ;  3  : 6.  The  subject  is  discussed  in  Chapters  VII  and 
VIII. 


I/O       American  Constitutional  Law 

grounds;  therefore  it  cannot  be  measured  strictly  as 
a  process  in  law,  although  it  is  under  a  procedure 
distinctively  in  constitutional  law.  The  check  on 
the  election  of  the  Executive  is  essentially  political, 
but  that  on  the  pardoning  power,  and  on  the  com- 
mand of  the  State  militia  is  not  political:  yet  all 
these  checks,  or  limitations,  are  constitutional. 

138.  The  constitutional  limitations  of  the  power 
of  Congress, — checks  on  federal  legislative  power, — 
include  term  of  service,  qualifications  for  office,  and 
authority  in  legislation.  The  large  limitation  is  of 
term  of  service:  six  years  for  Senators;  two  years 
for  Representatives.  The  people  of  the  United 
States  delegate  legislative  powers  to  Congress  for  a 
limited  time.  In  an  absolute  monarchy  there  is  no 
legislative,  nor  is  there  a  time  limit  on  the  monarch 
as  law-maker,  Lincoln  touched  the  vital  spot  when 
he  said  that  the  people  have  given  their  public  ser- 
vants but  little  power  for  mischief,  having  provided 
for  the  return  into  their  own  hands  at  very  short 
intervals  what  little  power  they  have  delegated. 
Were  Congress  a  corporation,  with  perpetual  charter, 
and  filling  vacancies  in  its  membership,  it  would,  for 
practical  purposes,  exercise  the  office  of  sovereignty 
and  would  exercise  power  without  limitation.  The 
delegation  of  legislative  power  by  the  people  of  the 
United  States  is  not  to  Senators  or  to  Representatives, 
but  to  Congress,  consisting  of  a  Senate  and  a  House 


The  Law  of  Limitations  171 

of  Representatives,  and  organized  and  proceeding 
according  to  the  Constitution.  The  question  in 
America  is  not  alone,  What  will  Congress  do?  but 
also,  What  can  Congress  do? 

139.  The  expressed  limitations  of  the  power  of 
Congress  are  that 

(i)  All  duties,  imposts,  and  excises  shall  be  uni- 
form throughout  the  United  States.  * 

(2)  No  appropriations  of  money  to  raise  and 
support  armies  shall  be  for  a  longer  period  than  two 
years.  ^ 

(3)  Militia  officers  must  be  appointed  by  the 
respective  States.  ^ 

(4)  No  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed. " 

(5)  No  tax  or  duty  shall  be  laid  on  exports  from 
any  State.  ^ 

(6)  No  discrimination  shall  be  made  as  to  ports 
of  entry  or  the  regulation  of  shipping.  ^ 


'Art.  i.,  8  :l. 

^  Id.,  8:12.  In  practice  appropriations  are  for  one  year;  if 
the  purpose  for  which  the  appropriation  was  made  is  not  effected 
within  the  year,  the  appropriation  ceases  to  be  available,  unless 
to  the  contrary  as  declared  in  the  law;  but  an  unexpended  appropria- 
tion may  be  made  available  (sometimes)  by  resolution  of  Congress, 
or  even  of  the  branch  of  Congress  specially  concerned. 

3  Art.  i.,  8  :  i6. 

*  Id.,  9  :  3.  The  limitation  as  to  prohibition  of  the  slave  trade 
was  temporary.     Id.,  9  :  i. 

s/ci.,  9:5. 

<M,  9:6. 


172       American  Constitutional  Law 

(7)  No  title  of  nobility  shall  be  granted  by  the 
United  States.' 

(8)  Neither  House,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that 
in  which  the  two  Houses  shall  be  sitting.  ^ 

(9)  Revenue  bills  shall  originate  in  the  House  of 
Representatives.  ^ 

(10)  No  Senator  or  Representative,  during  the 
time  for  which  he  is  elected,  can  be  appointed  to  any 
civil  office  under  the  United  States,  which  shall  have 
been  created,  or  the  emoluments  of  which  shall  have 
been  increased  during  such  time ;  and  no  person  holding 
any  office  under  the  United  States  shall  be  a  member 
of  either  House  during  his  continuance  in  office.  ^ 

(11)  No  act  of  Congress  concerning  treason  can 
provide  for  conviction  "unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  court,  "s 

(12)  A  bill  of  attainder  of  treason  is  not  a  bill  of 
attainder,  but  no  bill  of  attainder  of  treason  shall 

»  Art.  i.,  9:8.  ^  Id.,  5:4.  3  Id.,  7  :  i. 

4  Id.,  6  : 2.  This  is  a  limitation  of  the  freedom  of  choice  of 
certain  individuals  rather  than  a  limitation  of  Congress  as  a  legisla- 
tive body;  but  what  is  forbidden  to  a  member  of  Congress  cannot  be 
made  lawful  for  him  by  act  of  Congress;  thus  the  limitation  may  be 
one  of  legislation.  The  provision  (Art.  i.,  9  : 2)  concerning  the 
suspension  of  the  writ  of  habeas  corpus  is  not  a  limitation  of  the 
power  of  Congress,  for  Congress  is  the  judge  whether  public  safety 
requires  the  suspension  of  the  writ. 

5  Art.  iii.,  3:1,2. 


The  Law  of  Limitations  173 

work  corruption  of  blood,  or  forfeiture  except  during 
the  life  of  the  person  attained.  ^ 

(13)  A  new  State  cannot  be  erected  within  the 
jurisdiction  of  another  State,  or  be  formed  by  the 
junction  of  two  or  more  States,  or  parts  of  States, 
without  consent  of  their  respective  legislatures.  ^ 

(14)  The  power  of  Congress  to  make  rules  and 
regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States  cannot  be  exercised 
so  as  to  prejudice  the  claims  of  any  particular  State.  ^ 

140.  While  the  limitations  thus  far  cited  are 
specific  and  expressed,  they  go  less  to  the  funda- 
mentals of  government  and  civil  rights  than  do  other 
limitations  expressed  in  the  Constitution,  and 
notably  in  the  Amendments.  ^ 

It  is  not  unusual  that  a  State  constitution  declares 
that  to  guard  against  transgressions  of  the  high 
powers  of  government  delegated  by  the  people 
through  them,  everything  in  the  article,  commonly 
known  as  the  Bill  of  Rights,  is  excepted  out  of  the 
general  powers  of  government,  and  shall  forever 
remain  inviolate.  The  first  ten  Amendments  of 
the  Constitution  are  its  Bill  of  Rights,  and  are  a 
limitation  not  only  of  legislative  powers  but  also  of 

•  Art.  iii.,  3:2;  7J.  i.,  9:3. 

'  Id.  iv.,  3: 1.  3  Id.,  3  :2. 

4  The  first  ten  Amendments  were  demanded  in  1787-8  as  specific 
limitations  of  legislative  power  of  the  United  States,  and  as  a  pro- 
tection of  fundamental,  original  rights  of  the  people. 


174       American  Constitutional  Law 

executive  powers  vested  in  the  President,  and  of 
judicial  powers  vested  in  the  Supreme  and  inferior 
courts  of  the  United  States.  ^ 

As  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof,  or  abridging 
freedom  of  speech  or  the  press,  or  the  right  of  the 
people  peaceably  to  assemble  and  to  petition  to 
government  for  a  redress  of  grievances.  Congress  can 
make  no  law  whatever.  ^ 

Nor  can  Congress  infringe  the  right  of  the  people 
to  keep  and  bear  arms,  or  violate  their  right  to  be 
secure  in  their  persons,  houses,  papers,  and  effects,  or 
pass  any  law  holding  a  person  to  answer  for  a  capital 
or  otherwise  infamous  crime  unless  on  presentment 
or  indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia  when  in 
the  actual  service  of  the  United  States  in  time  of 
war,  or  public  danger;  or  pass  any  law  compelling 
any  person  to  be  subject  for  the  same  offence  twice  to 
be  put  in  jeopardy  of  life  or  limb,  or  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself, 
or  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law;  or  pass  any  law  taking  private 
property  for  public  use  without  just  compensation.  ^ 

The  practical  effect  of  the  limitations  expressed 

^  The  history  of  these  Amendments  in  the  author's  Constitvtional 
History  of  the  United  States,  ii.,  199-263. 
^  First  Amendment. 
3  Amendments  II.,  III.,  IV.,  V. 


The  Law  of  Limitations  175 

in  the  Fifth  Amendment  can  be  known  only  by  judi- 
cial interpretation,  and  decision  of  cases  instituted 
under  it;  no  theoretical  definition  can  anticipate 
these  decisions  of  the  Supreme  Court.  The  principle 
involved  is  the  protection  of  certain  fundamental 
rights  of  the  people.  In  a  similar  manner  do  the 
Sixth,  Seventh,  and  Eighth  Amendments  guard 
fundamental  rights  and  limit  the  legislative  power 
delegated  to  Congress  by  the  people  of  the  United 
States.  This  means  that  Congress  has  no  power  to 
deny  or  to  disparage  rights  enumerated  in  these 
Amendments  which  are,  as  a  group,  enumerative  of 
rights  at  common  law.  Nor  are  the  rights  enumer- 
ated, or  set  forth,  in  the  Constitution  as  (practically) 
excepted  out  of  the  powers  of  government,  and  for- 
ever inviolate,  the  only  rights  which  Congress,  in 
exercising  its  powers,  is  inhibited  from  violating. 
Other  and  unmentioned  rights  of  the  people  are 
distinctly  impUed,^  as  retained  by  them,  and  the 
Tenth  Amendment  is  a  general  limitation  of  Congress, 
President,  and  Courts,  for  it  declares  that  "The 
powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people."^ 
141.     The  line  of  demarcation  between  powers 

'  See  the  Ninth  Amendment. 

^  It  will  be  noticed  that  this  Amendment  is  not  a  limitation  of 
the  States;  it  applies  to  the  United  States. 


176      American  Constitutional  Law 

delegated  and  powers  reserved  has  always  been,  and 
doubtless  always  will  be,  in  dispute.  The  question 
involved  is  political  as  well  as  constitutional.  The 
abolition  of  slavery  by  the  Thirteenth  Amendment 
excludes  pro-slavery  legislation  of  any  kind  affecting 
the  United  States  or  any  place  subject  to  its  jurisdic- 
tion. In  like  manner  the  Fourteenth  Amendment 
forbids  Congress,  or  any  State,  to  assume  or  pay  any 
debt,  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  any  claim  for 
the  loss  or  emancipation  of  any  slave.  All  these 
limitations  of  legislative  power  are  practical  guides 
and  measurements  by  which  the  judicial  power, — the 
law  courts, — can  determine  what  the  law  is,  whether 
the  act  of  Congress  conflicts  with  the  Constitution. 
It  is  largely  through  these  expressed  limitations  that 
the  judiciary  becomes  a  check  on  the  legislative.  ^ 

142.  The  limitations  of  the  powers  of  the  States 
are  numerous  and  specific.  As  to  limitations  of 
State  power  {i.  e.,  the  power  of  the  State  government, 
executive,  legislative,  judicial,  administrative) ,  with- 
in State  jurisdiction,  the  several  State  constitutions 
alone  are  authoritative  and  final.  ^    The  Union  is  an 

^This  is  brought  out  by  Marshall  in  Marbury  v.  Madison,  i 
Cranch,  137, — the  comer-stone  of  many  later  decisions. 

^  The  limitations  of  the  States  by  the  Constitution  of  the  TJnited 
States  have  already  been  discussed  in  earlier  chapters.  Examination 
of  present  State  constitutions  will  disclose  existing  limitations  pre- 
scribed by  the  sovereignty,  the  people  of  the  State. 


The  Law  of  Limitations  177 

indestructible  Union  of  indestructible  States,  yet  the 
States  composing  the  Union  are  under  limitations 
as  members  of  that  Union.  Except  as  to  the  places 
of  choosing  senators,  Congress  may  at  any  time 
prescribe  the  times,  places,  and  manner  of  holding 
elections  of  senators  and  representatives.  * 

Congress  has  exclusive  jurisdiction  over  the 
District  of  Columbia,  and  over  places  purchased 
from  any  State,  and  over  federal  property.  ^ 

But  the  Constitution  enumerates  limitations  of 
the  States,  each  of  which  eliminates  sovereignty  from 
the  State  and  all  together,  with  some  other  limita- 
tions, reduce  a  State  to  what  Hamilton,  in  The 
Federalist  calls  "residuary  sovereignty."  ^ 

No  State  shall  enter  into  any  treaty,  alliance,  or  con- 
federation; grant  letters  of  marque  or  reprisal;  coin 
money;  emit  bills  of  credit;  make  anything  but  gold  and 
silver  coin  a  tender  in  pajonent  of  debts;  pass  any  bill 
of  attainder,  ex  post  facto,  law,  or  law  impairing  the 
obligation  of  contracts,  or  grant  any  title  of  nobility.'* 

*  Art.  i.,  4  : 1.  The  right  to  vote  for  members  of  Congress  has  its 
foundation  in  the  Constitution  of  the  United  States,  not  in  that  of 
any  State:  Wiley  r.  Sinkler,  179  U,  S.,  58;  Ex  parte  YsLvhrough,  no 
U.  S.,  651.  This  means  a  limitation  of  State  powers, — as  some 
might  say;  in  strictness,  it  means  a  definition  of  federal  powers;  the 
jurisdiction  of  a  State  cannot  exclude  the  jurisdiction  of  the  United 
States. 

'Id.,  8  :i7. 

3  No.  Ixii.  (The  authorship,  strictly  speaking,  is  imcertain,  being 
assigned  "to  Hamilton  or  Madison.") 

<Art.  i.,  10  :  i. 
12 


178       American  Constitutional  Law 

These  limitations  are  of  power  usually  classed  as 
sovereign.  Of  similar  scope  are  the  limitations, 
prescribed  by  the  Constitution,  of  State  power  of 
taxation, — that  is,  of  laying  imposts  or  duties;  of 
keeping  troops  or  ships  of  war;  of  entering  into  any 
agreement  with  another  State,  or  with  a  foreign 
power;  of  engaging  in  war,  unless  actually  invaded, 
or  in  imminent  danger  of  invasion,  not  admit- 
ting of  delay.  None  of  these  powers  can  a  State 
in  the  Union  exercise  without  the  consent  of 
Congress. ' 

143.  When  called  into  the  actual  service  of  the 
United  States,  the  State  militia  are  under  the  con- 
trol of  the  President, — a  limitation  of  the  power  of 
the  State  executives.  ^  The  Supreme  Court  of  the 
United  States  has  original  jurisdiction  in  all  cases  in 
which  a  State  is  a  party,  ^  except  in  cases  commenced 
or  prosecuted  against  a  State  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  foreign 
State,  in  which  cases  the  judicial  power  of  the  United 
States  has  no  jurisdiction  whatever.''  Neither 
slavery  nor  involuntary  servitude,  except  as  a  pun- 
ishment for  crime  whereof  the  party  shall  have 
been  duly  convicted  shall  exist  in  a  State.  ^  No  State 
shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 

•  Art.  i.,  10  :2,  3.  ^  Id.  ii.,  2:1.  3  Id.  iii,,  2  :  2. 

*  Amendment  XI.  s  Amendment  XIII. 


The  Law  of  Limitations  179 

States ;  or  deprive  any  person  of  life,  liberty,  or  pro- 
perty, without  due  process  of  law,  or  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of 
the  laws.  *  Denial  of  the  right  to  vote  by  a  State  to 
electors  qualified  as  electors  by  the  Constitution  of 
the  United  States  shall  work  a  proportional  loss  in  the 
basis  of  representation  in  Congress  from  that  State. 
No  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against 
the  United  States,  or  any  claim  for  the  loss  or  emanci- 
pation of  any  slave.  ^  A  little  reflection  will  lead 
one  to  the  conclusion  that  these  limitations  on  the 
States,  provided  in  the  Constitution  of  the  United 
States,  are  essential  to  the  existence  of  the  Union. 

144.  On  the  other  hand,  the  States  are  recognized 
as  checks  and  balances,  as  limitations  on  the  United 
States,  by  the  Constitution: 

(i)  Representatives  are  apportioned  among  the 
several  States,  but  each  State  shall  have  at  least  one 
Representative,  ^  and  no  State  can  be  deprived  of  its 
equal  suffrage  in  the  Senate  without  its  own  consent.  '• 

(2)  The  State  executive  alone  has  authority  to  issue 
writs  of  election  to  fill  vacancies  in  the  representa- 
tion of  a  State.  ^ 

(3)  Each    State  appoints    presidential    electors 

'  Amendment  XIV.  ^  Id. 

3  Art.  i.,  2:3.  *  Id.  V. 

s  Id.  i.,  2  :  4,     Amendment  XVII.,  2. 


i8o      American  Constitutional  Law 

equal  to  the  whole  number  of  Senators  and  Repre- 
sentatives to  which  it  is  entitled  in  Congress.  * 

(4)  In  case  of  a  disputed  election  of  President  or 
Vice-President,  the  Vice-President  is  chosen  by  the 
Senate, — the  President,  by  the  House  of  Representa- 
tives, the  vote  in  the  House  being  by  States,  each 
State  having  one  vote,  a  quonim  for  this  purpose 
consisting  of  a  member  or  members,  from  two  thirds 
of  the  States,  and  a  majority  of  all  the  States  being 
necessary  to  a  choice.  * 

(5)  The  States,  as  represented  in  the  Senate,  have 
power  to  confirm  or  to  reject  (two  thirds  of  the  sena- 
tors present  concurring)  treaties  and  nominations  to 
office  submitted  to  it  by  the  President.  ^ 

(6)  No  State  can  be  divided,  nor  can  a  new  State 
be  erected  within  a  State  without  its  own  consent." 

(7)  Each  State  is  guaranteed  a  repubHcan  form 
of  government  by  the  United  States,  and  protection 
against  invasion,  and  (on  appHcation  of  its  Legislature, 
or  of  its  Executive)  against  domestic  violence.  ^ 

(8)  The  Legislatures  of  two  thirds  of  the  States 
may  call  a  convention  for  amending  the  Constitu- 
tion; but  no  amendment  becomes  part  of  the  Con- 

'  Art.  iv.,  1:2.  *  Amendment  XII. 

3  Art.  ii.,  2:2.  *  Id.  iv,,  2  :  i. 

s/d.,  4.  But  the  Governor  cannot  so  apply  if  the  Legislature 
is  in  session.  The  reason  here  is  that  the  people  of  the  State 
have  fully  empowered  their  representatives  in  the  Legislature  "to 
see  that  the  Commonwealth  suffers  no  harm." 


The  Law  of  Limitations  i8i 

stitution  until  ratified  by  the  Legislatures  of  three 
fourths  of  the  States,  or  by  Conventions  in  three 
fourths  of  them,  as  the  one  or  the  other  mode  may  be 
proposed  by  Congress. '  In  this  procedure  of  amend- 
ing the  Constitution,  the  several  States  are  equal.  A 
proposed  amendment  may  be  ratified  and  become 
part  of  the  Constitution  by  the  approval  of  three 
fourths  of  the  States  irrespective  of  their  respective 
area,  population,  wealth,  or  any  other  mark  or 
quality.^  Finally,  both  as  conferring  benefits,  and 
as  prescribing  the  fundamental  limitations  on  the 
States  and  on  the  United  States,  the  Constitution 
and  the  laws  and  treaties  made  in  pursuance  thereof 
comprise  "the  supreme  law  of  the  land,"  and  all 
officials  "both  of  the  United  States  and  of  the  several 
States  shall  be  bound  by  oath  or  affirmation  to  sup- 
port it,  anything  in  the  constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding.  "^ 

The  character  of  this  supremacy  of  the  "law 
of  the  land"  is  indicated  in  the  Constitution  itself: 

'  Art.v. 

^  The  Sixteenth  Amendment  (income  tax)  bears  most  heavily  on 
States  having  large  cities  and  a  manufacttiring  population.  It 
is  possible  that  States  which  would  be  but  slightly  affected  by 
a  proposed  amendment,  might  favor  and  ratify  it;  to  avoid  this 
possible  discrimination,  the  suggestion  has  been  made  that  in  such  a 
case  the  power  of  a  State  to  ratify  or  to  oppose  ratification  should 
be  in  proportion  to  its  interests  as  affected  by  the  proposed  amend- 
ment. To  this  suggestion  answer  has  been  made  that  the  Constitu- 
tion is  national,  not  local,  in  purpose  and  operation. 

3  Art.  vi.,  2,  3. 


i82       American  Constitutional  Law 

"The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to 
the  people."^  The  fundamental  character  of  the 
limitations  which  this  provision  establishes  is  seen 
as  it  affects  the  common  interests  of  life.  These 
interests  include  domestic  relations,  ordinary  busi- 
ness transactions,  recognized  by  common  law;  the 
ownership,  acquisition,  administration,  and  distribu- 
tion of  estates;  peace  and  good  order  within  the 
State;  schools  and  education;  the  erection  and  care 
of  public  highways;  personal  liberty,  freedom  of 
worship,  freedom  of  speech  and  of  the  press.  These 
and  cognate  interests  are  within  the  scope  and  power 
of  the  State,  and  not,  unless  control  over  them  is 
specially  delegated,  within  the  scope  and  power  of 
the  United  States. 

In  truth,  excepting  in  the  election  of  United  States 
Senators,  members  of  the  House  of  Representatives, 
and  Presidential  Electors,  the  citizen  does  not 
participate  in  federal  government;  and  save  through 
the  post  office,  the  customs,  the  income  tax  (which 
directly  affects  fewer  than  half  a  million  persons  in 
the  United  States),  and  in  banking  (including  the 
use  of  the  money  of  the  country)  the  citizen  rarely 
has  anything  to  do  with  the  United  States.  On 
the  other  hand,  in  the  protection  of  his  property, 

'  Tenth  Amendment. 


The  Law  of  Limitations  183 

the  education  of  his  family,  the  right  of  use  of  high- 
ways, the  validation  of  contracts,  the  rights,  privi- 
leges and  use  of  multitudinous  relations  safeguarded 
by  the  common  law  and  the  statute,  it  is  the  State, 
not  the  United  States,  which  has  first  place,  and, 
consequently,  constitutional  priority. 

The  exact  line  of  division  between  State  and 
federal  powers  is  not  known.  The  principle  which 
rules  in  every  attempt  to  fix  this  line  is  that  the 
enumeration  of  rights  and  powers  in  a  constitution, — 
State  or  federal, — "shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people"^  of  the 
State  or  of  the  United  States. 

145.  The  essential  doctrine,  here,  is  set  forth  by 
the  Supreme  Court  in  a  decision  which  gives  almost 
unlimited  power  to  Congress  in  certain  cases  (its 
power  over  a  Territory,  or  possession  of  the  United 
States) :_ 

There  are  certain  principles  of  natural  justice  inherent 
in  the  Anglo-Saxon  character  which  need  no  expression  in 
constitutions  or  statutes  to  give  them  effect,  or  to  secure 
dependencies  against  legislation  manifestly  hostile  to 
their  real  interests.  .  .  .  The  wisdom  and  discretion  of 
Congress,  their  identity  with^the  people,  and  the  influence 
which  their  constituents  possess  at  elections,  are  in  this, 
as  in  many  other  instances, — as  that  for  example,  of 
declaring  war, — the  sole  restraints  on  which  they  have 
relied  to  secure  them  from  its  abuse.     They  are  the 

*  Ninth  Amendment. 


i84       American  Constitutional  Law 

restraints  on  which  the  people  must  often  solely  rely  in  all 

representative  government. ' 

The  limitation  of  powers  delegated  by  the  people 
of  the  United  States,  in  the  federal  Constitution,  or 
of  a  State,  in  its  constitution,  implies  a  delegation  of 
powers  adequate  to  performance  of  legitimate  civil 
functions.  The  large  question  involved  in  every 
case  of  a  constitutional  nature,  or  constitutional 
construction,  is  whether  in  the  discharge  of  a  func- 
tion, or  an  office,  the  government,  or  any  depart- 
ment of  it  is  transcending  its  delegated  powers. 
This  question  is  of  the  essence  of  constitutional  law 
and  judicial  interpretation. 

146.     The   people   interpret   their   will   in   their 

^  The  first  quotation  is  from  Downes  v.  Bid  well,  182  U.  S.,  244 
(1901);  the  second,  from  Gibbons  v.  Ogden,  9  Wheaton,  235  (1824), 
decision  by  Marshall.  The  application  of  the  principle  laid  down  by 
Chief  Justice  Marshall  in  1824  and  elaborated,  at  times,  by  the 
Supreme  Court, — as  in  1901, — was  discussed  by  the  eminent  jurist, 
Thomas  M.  Cooley,  in  a  brief  address  to  the  North  Dakota  Constitu- 
tional Convention,  July  17,  1889.  At  that  time  he  was  Chairman  of 
the  Interstate  Commerce  Commission.  "Don't,  in  your  constitu- 
tion-making, legislate  too  much.  In  your  constitution  you  are 
tying  the  hands  of  the  people.  Don't  do  that  to  any  such  extent 
as  to  prevent  the  Legislature,  hereafter,  from  meeting  all  evils  that 
may  be  within  the  reach  of  proper  legislation.  Leave  something  for 
them.  Take  care  to  put  proper  restrictions  upon  them,  but  at  the  same 
time  leave  what  properly  belongs  to  the  field  of  legislation  to  the 
Legislature  of  the  future.  You  have  got  to  trust  somebody  in  the 
future  and  it  is  right  and  proper  that  each  department  of  government 
should  he  trusted  to  perform  its  legitimate  functions."  Proceedings 
and  Debates  of  the  First  Constitutional  Convention  of  North  Dakota, 
Assembled  in  the  City  of  Bismarck,  July  4  to  August  17,  1889,  p.  67. 
(Italization  in  text,  not  in  original.) 


The  Law  of  Limitations  185 

election  of  executive,  legislative,  or  judiciary,  and 
the  elective  system  prevails  for  all  three  in  most  of 
the  States.  ^  The  courts  interpret  the  laws  in  course 
of  performance  of  their  judicial  duties,  and  their 
interpretation  conforms  to  principles  of  justice. 
Thus  in  addition  to  the  popular  restraint,  through 
frequent  elections, — there  is  judicial  restraint,  or 
limitation  of  legislative  and  executive  (but  strictly 
ministerial)  powers.*  The  entire  case,  as  to  the 
relation  of  the  judiciary  to  the  legislative,  is  covered 
by  the  rule  laid  down  by  the  Supreme  Court:  "It 
is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is. "  ^  This  duty  is  of 
State  judges  as  well  as  federal,  for  all  American  judges 
are  alike  bound  by  oath  to  support  the  Constitution.  ^ 
Any  American  judge  has  jurisdiction  to  pronounce 
as  to  the  constitutionality  of  an  act  of  Congress  or 
of  a  State  legislature.  The  essential  fact  necessary 
in  such  pronouncement  is  that  the  validity  of  the 
law  is  vital  to  the  real  interests  of  a  party  to  the  case 

''■  Thirty-three  States  have  an  elective  judiciary.  In  Maine,  New 
Hampshire,  Massachusetts,  Connecticut,  Delaware,  Mississippi,  and 
New  Jersey,  the  Governor  nominates  and  the  Senate  confirms  judges; 
in  Rhode  Island,  Vermont,  South  Carolina,  and  Virginia,  the  Legisla- 
ture elects  the  judges;  in  Florida,  the  Governor  appoints  judges  of  the 
Superior  Courts  and  judges  of  the  Supreme  Court  are  elected  by  the 
people. 

'  Strictly  executive  functions  are  not  within  the  jurisdiction  of 
courts  of  law.     See  the  discussion  in  Chapter  VII. 

»Marbury  v.  Madison,  i  Cranch,  137  (1803). 

*  Art.  vi.,  2,  3. 


i86       American  Constitutional  Law 

or  controversy  before  the  court.  The  decision  of  the 
court  is  not  an  obiter  dictum,  a  mere  philosophical 
opinion,  so-called,  of  the  judges,  individually,  or 
collectively,  based  on  an  interpretation  of  justice. 
The  constitutionality  of  the  law  in  question  rrlust  be 
an  essential  part  of  the  issue  before  the  court. 

Whenever,  in  pursuance  of  an  honest  and  actual 
antagonistic  assertion  of  rights  by  one  individual  against 
another  there  is  presented  a  question  involving  the  valid- 
ity of  any  act  of  any  Legislature,  State  or  federal,  and 
the  decision  necessarily  rests  on  the  competency  of  the 
Legislature  to  so  enact,  the  court  must,  in  the  exercise 
of  its  solemn  duties,  determine  whether  the  act  ig  con- 
stitutional or  not;  but  such  an  exercise  of  power  is  the 
viltimate  and  supreme  function  of  courts.  It  is  legitimate 
only  in  the  last  resort,  and  as  a  necessity  in  the  deter- 
mination of  real,  earnest,  and  vital  controversy  between 
individuals.  It  never  was  the  thought  that  by  means 
of  a  friendly  suit,  a  party  beaten  in  the  Legislature  could 
transfer  to  the  courts  an  inquiry  as  to  the  constitutionality 
of  the  legislative  act.^ 

The  principle  of  constitutional  interpretation  is 
given  by  Chief  Justice  Marshall : 

Let  the  end  be  legitimate,  let  it  be  within  the  scope 
of  the  Constitution,  and  all  means  which  are  appropriate, 
which  are  plainly  adapted  to  that  end,  which  are  not 

'  Chicago,  etc.,  Ry.  Co.  v.  Wellman,  143  U.  S.,  339  (1892) ;  Frees  v. 
Ford,  6  New  York,  176  (1852);  Commonwealth  v.  McCloskey,  2 
Rawle  (Pa.)  374;  WelUngton,  Petitioner,  16  Pickering  (Mass.),  96. 


The  Law  of  Limitations  187 

prohibited,  but  consist  with  the  letter  and  spirit  of  the 
Constitution,  are  constitutional.^ 

And  he  develops  the  principle  further: 

But  where  the  law  is  not  prohibited,  and  is  really- 
calculated  to  effect  any  of  the  objects  entrusted  to  the 
government,  to  undertake  (in  courts  of  law)  to  inquire 
into  the  degree  of  its  necessity  would  be  to  pass  the  line 
which  circumscribes  the  judicial  department,  and  to 
tread  on  legislative  ground.^ 

147.  The  American  constitutions  are  expressed 
and  implied,  limitations  of  governmental  powers, 
though  popularly  considered  as  grants  of  such  powers. 
"The  truth  is,"  wrote  Hamilton  in  The  Federalist, 
"the  Constitution  is  itself,  in  every . rational  sense, 
and  to  every  useful  purpose,  a  Bill  of  Rights."  It  is 
"the  Bill  of  Rights  of  the  Union."  It  declares  and 
specifies  "the  political  privileges  of  the  citizens  in  the 
structure  and  administration  of  the  government." 
It  "defines  certain  immunities  and  modes  of  pro- 
ceeding which  are  relative  to  personal  and  private 
concerns."  It  comprehends  "various  precautions 
for  the  public  security  which  are  not  to  be  found 
in  any  of  the  State  constitutions." ^  James  Wilson 
agreed  with  Hamilton  that  the  Constitution  is  itself 
a  Bill  of  Rights,  remarking,  in  reply  to  the  objection 
that  the  Constitution  as  it  left  the  hands  of  its 

'  McCuUoch  V.  Maryland,  4  Wheaton,  421  (18 19). 
^  Idem,  423.  3  No.  Ixxxiv. 


i88       American  Constitutional  Law 

framers  and  went  to  the  country  had  no  Bill  of 
Rights: 

A  Bill  of  Rights  would  have  been  improperly  annexed 
to  the  federal  plan  {i.  e.,  the  Constitution,  1787),  and 
for  this  plain  reason  that  it  would  imply  that  whatever 
is  not  expressed  was  given,  which  is  not  the  principle 
of  the  proposed  Constitution.^ 

As  constitutions  are  the  most  solemn  form  of 
limitations  of  governmental  powers,  their  interpreta- 
tion determines  the  whole  character  of  the  govern- 
ment. The  principle  of  constitutional  interpretation 
is  that 

words  are  to  be  understood  in  that  sense  in  which  they 
are  generally  used  by  those  for  whom  the  instrument 
was  intended;  its  provisions  are  neither  to  be  restricted 
into  insignificance,  nor  extended  to  objects  not  com- 
prehended in  them,  nor  contemplated  by  its  founders.* 

The  effect  of  the  judicial  pronouncement  of  the 
unconstitutionality  of  a  law  is  to  make  it  "in  legal 
contemplation,  as  inoperative  as  if  it  had  never  been 
passed.  "2 

» Pennsylvania  and  the  Federal  Constitution,  McMaster  and  Stone, 
254.  Both  Hamilton  and  Wilson  were  overruled  by  the  public 
demand  for  a  Bill  of  Rights,  and  the  first  ten  Amendments  were 
speedily  added  to  the  Constitution. 

^  Ogden  V.  Saunders,  12  Wheaton,  332  (1827);  Martin  v.  Hunter's 
Lessee,  i  Wheaton,  304  (18 16);  United  States  v.  Aaron  Burr,  Cot- 
ton's Constitutional  Opinions  of  John  Marshall,  i.ioo;  Sturgis  v. 
Crowningshield,  4  Wheaton,  122  (18 19);  Cohens  v.  Virginia,  6  Whea- 
ton, 264  (1821);  Cooley,  Constitutional  Limitations,  6th  Edition,  204. 

3  Norton  v.  Shelby  County,  118  U.  S.,  425. 


The  Law  of  Limitations  189 

148.  To  whatsoever  extent  State  or  federal 
ofificials  perform  ministerial  functions  they  are 
answerable  to  the  judiciary  for  their  acts.  Minis- 
terial officers  comprise  the  vast  body  of  appointees 
in  the  States  and  in  the  United  States.  They  are 
not  executive  officers,  for  such  perform  functions 
distinctively  outside  judicial  investigation,  but  as 
distinctively  within  the  political  powers  of  the  legis- 
lature. The  judiciary  is  a  powerful  limitation  of 
ministerial  powers,  in  the  sense  that  the  performance 
of  those  powers  is  examinable  in  courts  of  law. ' 

In  the  popular  mind  the  veto  power  may  seem  to 
be  the  principal  executive  check  on  legislation.  This 
conviction  takes  form  in  State  constitutions^  which 
authorize  the  Governor  to  veto  any  item  in  an 
appropriation  bill,  or  to  cut  the  item  down. 

One  result  of  this  popular  conviction  is  acquies- 
cence in  exercise  of  executive  power  which,  in  former 
times  would  have  been  interpreted  by  the  people 
as  "executive  usurpation."  At  present  the  people 
rely  upon  their  executives, — Governors,  Presidents, — 

*  The  relation  of  the  judiciary  to  ministerial  ofScers  has  already 
been  examined;  see  Chapters  VII  and  VIII.  But  see  in  this  con- 
nection, the  Secretary  v.  McGarrahan,  9  Wallace,  298;  United  States 
V.  Black,  128  U.  S.,  40;  United  States  v.  Windom,  137  U.  S.,  636; 
United  States  ».  Blaine,  139  U.  S.,  306;  State  ex  rel.  v.  Stone,  120 
Missouri,  428. 

*  Pennsylvania,  1873,  Art.  iy.  §16.  This  provision  does  not  em- 
power the  Governor  to  cut  down  an  item,  but  in  practice,  it  is  so 
construed. 


190       American  Constitutional  Law 

to  act  as  a  check, — a  limitation, — on  unwise  legisla- 
tion. This  reliance,  or  expectation,  is  a  powerful 
element  in  practical  politics.  Thus  the  limitations 
of  government  in  America  are  threefold:  first,  the 
American  constitutions  themselves;  secondly,  fre- 
quent popular  elections,  and  thirdly,  the  judiciary 
in  its  interpretation  of  constitutions  and  laws. 
These  limitations  are  constitutional  limitations. 
There  is  a  fourth  limitation  but  it  belongs  to  another 
sphere, — the  sphere  of  politics.  ^ 

'  As  sovereignty  is  a  unit,  any  examination  of  particular  aspects 
of  it  must  be  but  a  partial  examination  of  its  operations.  The 
Constitution  of  the  United  States  is  a  unit,  in  so  far  as  the  sover- 
eignty,— the  people  of  the  United  States, — have  made  it  the  expres- 
sion of  their  plan  of  government.  It  follows  that  close  examination  of 
any  department  or  feature  of  the  Constitution  as  a  plan  of  govern- 
ment discloses  that  feature  in  relation  with  other  features ;  the  Con- 
stitution is  an  expression  of  a  mass  of  relations.  Thus  it  is  that  a 
decision  of  the  Supreme  Court  may  relate  to  several  matters,  seem- 
ingly without  relation,  but  necessarily  co-related.  The  present 
chapter  on  The  Law  of  Limitations  discusses  executive,  legislative, 
and  judiciary  and  the  principles  of  government  by  which  it  acts.  The 
entire  subject  of  American  constitutional  law  must  be  viewed  as  a  whole. 
See  Pollock  v.  Farmers'  Loan  and  Trust  Co.,  158  U.  S.,  601  (1895); 
Field  V.  Clark,  143  U.  S.,  649  (1892).  Also  The  Federalist,  Nos. 
xliv.-lvi. 


CHAPTER  XI 

THE  LAW  OF  FUNDAMENTAL  RIGHTS 

149.  The  people  of  the  several  States,  and  the 
people  of  the  United  vStates,  have  delegated  powers 
to  the  governments  which  they  have  respectively 
created.  The  powers  thus  delegated  are  general,  or 
special.  Doubtless  the  special  are  implied  in  the 
general,  but  in  order  to  secure  precision,  and  thus 
to  mark  off,  in  practical  fashion,  the  boundaries 
of  the  grants,  the  delegation  of  a  power,  or  the 
reservation  of  a  power  is  declared  as  clearly  as 
possible  in  language  of  adjudicated  meaning,  or 
capable  of  interpretation  according  to  such  meaning. 

In  the  American  constitutions,  both  federal  and 
State,  many  provisions  are  administrative,  that  is, 
prescriptive  of  method,  or  procedure,  as  the  strictly 
parliamentary  provisions  on  the  legislative  respect- 
ing sessions,  the  journal,  the  quorum,  adjournments, 
the  method  of  passing  bills,  and  the  like.  In  the 
article    on    the    judiciary,   in    State   constitutions, 

provisions    are    found    concerning    appeals,    writs, 

191 


192      American  Constitutional  Law 

minor  court  officials,  sessions  of  courts,  records, 
decisions,  and  the  like,  all  of  which  are  of  secondary 
importance  as  compared  with  the  general  grant  of 
judicial  power. 

In  the  executive  article, — and  notably  in  State 
constitutions,  all  that  does  not  strictly  belong  to  the 
executive  office, — that  is,  to  the  distinctive  functions 
of  the  Governor,  is  administrative.  In  the  Constitu- 
tion of  the  United  States  there  is  little  of  this  ad- 
ministrative matter  formally  expressed,  but  much  by 
implication, — for  the  appointees  of  the  President 
(excepting  the  federal  judges)  are  administrative 
officers,  and  the  appointees  of  the  President,  of  the 
heads  of  departments,  or  of  the  courts  of  law, — 
constituting  what  is  known  in  law  as  "inferior 
officers"^  comprehends  quite  all  persons  in  the 
employ  of  the  federal  government. 

In  the  State  constitutions  the  important  ad- 
ministrative offices  are  usually  named,  as  of  treasurer, 
auditor  general,  secretary  of  state,  superintendent 
of  education,  commissioner  of  labor,  of  insurance,  of 
agriculture,  of  railways,  and  the  like.  The  duties  of 
persons  elected  to  these  offices  are  usually  prescribed 
in  general  terms.  Their  delegated  powers  are  ascer- 
tainable by  judicial  procedure.  A  little  reflection 
will  make  clear  that  most  of  the  mere  business  of 
government.  State  or  federal,  is  carried  on  by  ad- 

'  Art.  ii.,  2  :  2. 


The  Law  of  Fundamental  Rights    193 

ministrative  officials  who  number,  in  the  aggregate, 
in  the  United  States  quite  a  million.  These  persons 
possess  slight,  if  any  discretionary  authority;  they 
are  ministerial  public  servants,  and  in  the  exercise 
of  authority  vested  in  them  they  are  all  amenable 
to  judicial  process. 

150,  That  Congress,  with  delegated  powers  of 
legislation,  and  exercising  them  as  the  representative 
and  agent  of  the  sovereign  people  of  the  United 
States,  has  power  to  lay  and  collect  taxes,  to  coin 
money,  to  declare  war,  to  regulate  commerce,  and 
to  do  other  acts,  whether  or  not  these  powers  were 
specifically  conferred,  can  hardly  be  denied.  The 
exercise  of  such  powers  goes  with  the  very  existence 
of  government.  An  example  is  afforded  by  the  deci- 
sion of  the  Supreme  Court  that  the  power  of  the 
United  States  to  acquire  territory  and  to  govern  it 
is  an  exercise  of  the  war  power.  ^  The  Court  here 
reasons  from  the  general  to  the  particular:  from  the 
general  grant  of  power  to  declare  war  to  the  particular 
use  of  the  power  in  governing  an  area  of  territory 
acquired. 

It  might  seem,  then,  that  as  the  whole  always 

includes  the  part,  and  the  general  the  particular, — 

the  necessary  and  essential  thing  to  do  in  creating 

government  is  merely  to  create  it;  for  example,  that 

the  people  of  the  United  States  should  ordain  and 

'  American  Insurance  Company  v.  Canter,  i  Peters,  511. 
13 


194       American  Constitutional  Law 

establish  a  Constitution  consisting  of  the  Preamble, 
which  states  the  purpose  and  authority  of  the  Con- 
stitution, and  three  general  articles : 

Article  I.  The  legislative  power  is  vested  in 
Congress. 

Article  II.  The  executive  power  is  vested  in  the 
President. 

Article  III.  The  judicial  power  is  vested  in  a 
Court. 

151.  The  Preamble  and  these  three  delegations 
of  power  comprise  the  essentials  of  the  Constitution, 
lacking  one  other: 

Article  IV.  The  powers  not  delegated  are  re- 
served to  the  States  or  to  the  people,  and  the  enu- 
meration of  certain  rights  in  the  Constitution  shall 
not  be  construed  to  deny  or  disparage  others  retained 
by  the  people.  ^ 

The  rights  thus  retained,  that  is,  not  delegated, 
are  fundamental  rights,  are  inviolate,  and  to  guard 
against  transgressions  of  the  high  powers  delegated 
to  government  by  the  people  are  excepted  out  of  the 
general  powers  of  government;  and  being  excepted 
out  of  the  general  powers,  they  are  logically  excepted 
out  of  the  particular. 

Thus,  in  final  analysis,  constitutional  law  in  Amer- 
ica is  shaped  and  determined  by  interpretation  of 
these  fundamental  rights.     The  supreme  law  cannot 

'  Amendments  IX.,  X. 


The  Law  of  Fundamental  Rights    195 

violate  them.  They  comprise  the  Bills  of  Rights,  or 
Declarations  of  Rights  of  the  State  constitutions  and 
the  first  ten  amendments  of  the  federal  Constitution. 
152.  There  is  no  fixed  order  of  these  rights  or 
priority  among  them.  The  Constitution,  as  framed 
originally,  forbade  any  religious  test  for  any  federal 
office  or  trust.  ^  The  First  Amendment  forbids 
Congress  to  make  any  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise 
thereof.  The  limitation  is  wholly  on  Congress. 
If  any  such  exists  for  a  State  it  is  found  in  the  con- 
stitution of  that  State.  Crime  cannot  be  protected 
under  the  claim  or  guise  of  being  religion.  Thus 
polygamy,  bigamy,  or  conduct,  ceremonies  or  obser- 
vance criminal  and  offensive  to  the  commonsense 
of  mankind  cannot  be  tolerated.^  Freedom  of 
religion  cannot  be  made  a  cloak  for  immorality 
or  crime.  ^  The  preservation  of  religious  liberty  is 
largely  a  function  of  the  States.  The  essentials 
here  are:  the  equality  of  religious  establishments 
before  the  law;  "exemption  of  all  persons  from 
compulsory  support  of  religious  worship  and  from 

'  Art.  vi.,  3,  The  ratifying  conventions,  1788-9,  formulated  in  the 
aggregate  some  two  hundred  amendments  in  the  nature  of  provisions 
in  a  Bill  of  Rights.  These,  reduced  to  twelve,  were  presented  by- 
Madison  (May  25,  1789)  in  the  House  of  Representatives  and  were 
duly  submitted  to  the  States  for  ratification.  Ten  were  ratified 
(1790). 

^  Reynolds  v.  United  States,  98  U.  S.,  145  (1878). 

J  Davis  V.  Season,  133  U.  S.,  333. 


196       American  Constitutional  Law 

compulsory  attendance  upon  the  same"^;  freedom 
of  conscience  and  speech  in  religious  matters,  and 
entire  exemption  of  the  person  from  discrimination, 
domination,  censorship,  or  interference  in  matters 
of  religion  by  the  State. 

But  this  fundamental  right  does  not  free  the  per- 
son from  responsibility  to  the  State  for  the  results 
of  his  belief  or  conduct,  in  so  far  as  either  imperils 
the  State.  Thus,  so-called  "reHgious  belief"  or  con- 
duct which  destroys  or  endangers  peace  and  good 
order,  or  the  life,  or  lives,  or  reputation  of  a  per- 
son or  a  community  cannot  work  exemption  under 
the  claim  of  religious  liberty. ' 

Freedom  of  speech,  of  the  press,  and  of  assembling 
are  ancient  rights,  each  won  after  long  struggle 
against  absolutism.  ^  These  rights  are  inviolable, 
but  the  same  principle  applies  to  them  as  to  religious 
freedom :  he  who  exercises  them  is  responsible  for  the 
abuse  of  the  right.  '^ 

'  Cooley,  Principles  of  Constitutional  Law,  3d  Edition,  226.  As  to 
"Readings  from  the  Bible"  in  public  schools,  see  Pfeiffer  v.  Board  of 
Education,  77  N.  W.  Reporter,  250  (1898);  State  ex  rel.  Weiss  v. 
District  Board,  76  Wisconsin,  177  (1890). 

^  People  V.  Ruggles,  8  Johns  (N.  Y.),  290.  The  exemption  from 
taxation  of  property  belonging  to  religious  bodies  (corporations)  is 
not  because  of  any  fundamental  right  of  such  bodies  to  exemption, 
but  because  of  the  will  of  the  legislature.     It  is  a  matter  of  policy. 

i  The  winning  of  these  and  other  fundamental  rights  is  largely  the 
subject  of  English  constitutional  history. 

*  So  expressed  in  many  State  constitutions,  as  Pennsylvania,  1873, 
i.,7. 


The  Law  of  Fundamental  Rights    197 

153.  Every  citizen  is  subject  to  the  legislative 
power  of  the  State,  and  abuse  of  a  fundamental 
right, — as  of  freedom  of  speech  or  of  the  press  in 
uttering  a  Hbel, — cannot  exempt  the  party  from 
prosecution.  No  man  can  make  plea  of  a  funda- 
mental right  as  making  him  "above  the  law."  The 
law  accords  with  the  fundamental  right. 

The  right  to  petition  government  for  redress  of 
grievances^  is  essentially  the  right  of  freedom  of 
speech  in  a  particular  way.  The  right  to  keep  and 
bear  arms  is  essentially  the  right  to  self -protection, 
but  this  right  may  not  be  abused  with  impunity;  it 
does  not  empower  any  person  to  take  the  law  into 
his  own  hands,  or  to  carry  weapons.  ^  Carrying  con- 
cealed weapons  is  not  an  exercise  of  the  right  to 
bear  arms,  unless  in  the  performance  of  a  function, 
the  execution  of  an  office,  in  which  case  such  carrying 
is  permitted  (licensed)  by  the  State.  Essentially 
the  right  to  bear  arms  is  akin  to  the  right  to  revolu- 
tion as  set  forth  in  the  Declaration  of  Independence. 

The  person,  his  or  her  papers  and  dwelling  are 
exempt  from  unwarrantable  searches,  seizure,  or 
invasion.  The  exemption  here  goes  to  the  fun- 
damental supremacy  of  the  civil  over  the  military 
authority.  A  warrantable  search  is  lawful  because 
the  sovereign — the  State    or  the  United    States — 

'  A  right  fully  established  at  the  trial  of  the  Seven  Bishops,  1688. 
*  United  States  v.  Cruikshank,  92  U.  S.,  542  (1875). 


198       American  Constitutional  Law 

has  the  primary  right  of  self-protection,  safety, 
peace,  good  order, — indeed,  the  right  to  realize  the 
essential  purposes  and  ends  of  sovereignty.  But  the 
boundary  between  private  right  and  public  necessity 
(another  expression  for  sovereignty)  must  be  drawn 
with  precision.  The  language  of  the  Fourth  Amend- 
ment is  explicit.  ^ 

154.  The  first  ten  amendments  prohibit  the 
United  States  from  violating  the  fundamental  rights 
of  persons;  they  are  a  protection  against  federal 
tyranny.  The  Thirteenth  and  Fourteenth  Amend- 
ments prohibit  the  States  from  violating  certain 
fundamental  rights  of  persons.  Any  one  comparing 
the  Fifth  and  the  Fourteenth  Amendments  discovers 
the  same  language  as  to  "due  process  of  law"  and 
"life,  liberty,  and  property."  The  State  constitu- 
tions protect  persons  in  like  manner.  Thus  the 
fundamental  right  prevails  in  both  jurisdictions, — 
that  of  the  State  and  that  of  the  United  States. 

The  Fifth  Amendment  does  not  exempt  a  person 
from  presentment  or  indictment,  or  trial,  but  recog- 
nizes his  fundamental  right  to  protection  by  due 
process  of  law.  ^ 

^West  r.  Cabell,  153  U.  S.,  78;  Weeks  v.  U.  S.,  232  U.  S.,  383; 
Ex  parte  Milligan,  4  Wallace,  2 ;  U.S.  v.  Louisville  &  Nashville  R.R. 
Co.,  236  U.  S.,  318;  U.  S.  V.  Boyd,  116  U.  S.,  616  (the  leading  case), 
and  Getting  v.  Kansas  City  Stock  Yards  Co.,  183  U.  S.,  79  (1901). 

^Paul  V.  Virginia,  8  Wallace,  168  (1808);  Blake  v.  I^IcClung,  172 
U.  S.,  239  (1898);  Lockner  v.  New  York,  198  U.  S.,  45  (1905). 


The  Law  of  Fundamental  Rights    199 

The  protection  of  the  person  is  of  his  life,  liberty, 
and  property — his  rights  to  either  of  which  are 
fundamental.  Yet  his  life  may  be  taken  in  defense 
of  the  State,  or  of  the  United  States;  he  may  be 
deprived  of  his  liberty, — civil,  political,  or  natural, — 
for  cause,  and  his  property  may  be  confiscated  to  the 
State,  or  to  the  United  States,  for  like  reason.  This 
apparent  conflict  between  theory  and  fact  is  in  no 
sense  a  violation  of  the  fundamental  right  of  the  per- 
son thus  affected.  He  is  entitled  to  his  fundamental 
rights ;  so  are  the  several  States  and  the  United  States 
entitled  to  their  respective  fundamental  rights:  but 
they  are  sovereignties;  the  person  is  not,  and  his 
fundamental  rights  to  life,  liberty,  and  property  give 
place  to  the  rights  of  the  sovereign. 

155.  Neither  the  State  government  nor  the  federal 
government  is  that  sovereign,  but  each  is  an  agent  of 
a  sovereign.  The  sovereign  can  do  no  wrong.  To 
the  extent  that  the  individual  person  is  identified  with 
sovereignty,  he  or  she  can  do  no  wrong,  and  his  or 
her  rights  are  primary  as  well  as  fundamental. 
For  this  reason  the  first  ten  amendments  specify 
the  protection  and  the  guarantees  which  apply  to 
the  person  as  against  the  powers  of  the  Government 
of  the  United  States.  * 

'  The  rights  of  the  person,  and  his  or  her  rights  of  property  are 
the  essential  subject  of  the  Fourth,  Fifth,  Sixth,  Seventh,  and 
Eighth  Amendments.  Similar  provisions  are  included  in  the  Bills 
of  Rights  in  the  State  constitutions. 


200      American  Constitutional  Law 

The  test  whether  or  not  mere  is  invasion  of  the 
fundamental  rights  which  are  excepted  out  of  the 
powers  of  government  is  the  issue,  "Is  sovereignty 
imperiled?"  As  against  sovereignty,  the  person  has 
in  the  final  test  no  rights  whatever :  that  is  no  rights 
that  are  recognized  and  protected  by  constitutional 
law.     The  supreme  test  is,  however,  rarely  made. 

156.  The  fundamental  rights  outlined  in  the 
first  ten,  and  in  the  Thirteenth  and  Fourteenth 
Amendments  to  the  Constitution  are  essentially  the 
right  of  the  person  to  the  protection  of  sovereignty 
against  acts  of  the  government.  The  nature  of  this 
protection  is  expressed  in  the  Ninth  and  Tenth 
Amendments.  Sovereignty  does  not  define  its 
rights;  it  defines  or  enumerates  powers  which  it 
delegates  to  government.  Were  sovereignty  to 
define  (if  it  were  possible  to  define)  its  rights,  it 
would  limit  itself,  and  to  that  extent  cease  being 
sovereign.  The  fundamental  rights'  thus  reserved 
(in  addition  to  those  already  mentioned  but  not  in 
any  sense  exhaustive)  are,  the  right  of  equality  before 
the  law;  of  consequent  equal  protection  of  the  laws; 
of  the  exercise  of  the  police  power;  of  education;  of 
employment ;  of  making  contracts;  of  trial  by  jury;  of 
being  a  person  (not  a  thing)  and  to  realize  and  possess 
the  privileges  and  immunities  thereunto  pertaining. 

'  Corfield  v.  Coryell,  4  Washington  C.  C,  371;  Slaughter  House 
Cases  16  Wallace,  36. 


The  Law  of  Fundamental  Rights   201 

157.  Practically,  these  fundamental  rights  are 
realized  through  the  judiciary  when  the  issue  and  test 
of  their  existence  arise.  Thus  we  turn  to  judicial 
decisions  for  the  interpretation  of  these  rights,  or 
for  declaration,  in  official  form,  of  their  primary 
rank  as  "reserved  to  the  people  or  to  the  States." 
All  legislation,  State  or  federal,  must  conform  to 
them.  Whether  it  actually  does  so  conform  is  de- 
terminable in  and  by  courts  of  law,  on  the  principle, 
declared  by  Chief  Justice  Marshall,  that  "it  is  em- 
phatically the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is."  Thus  for  the 
protection  of  these  fundamental  rights  the  judiciary, 
by  every  principle  of  American  constitutional  law, 
is  final,  unless  the  sovereign  arouses  himself  and 
changes  the  function,  or  office  of  the  judiciary 
itself.  ^  The  sovereign  may  thus  act,  as  the  people  of 
a  State,  or  of  the  United  States.  ^  The  now  familiar 
decision  of  the  Supreme  Court  as  to  the  power  of 
Congress  over  American  territory  (as  differing 
from  a  State  in  the  Union)  ^  recognizes  and  declares 
that  there  are  certain  principles  of  natural  justice 


*  This  act  of  sovereignty  is  so  rare  as  almost  to  be  unknown.  In 
America  the  act  takes  the  form  of  an  amendment  to  the  Constitution. 

^  The  forty-eight  States  have  had,  in  the  aggregate,  some  one 
hundred  and  twenty-five  constitutions,  and  to  these  have  been  added 
some  three  hundred  amendments  (1776-1917).  The  federal  Con- 
stitution has  been  amended  seventeen  times  (i 787-1913). 

3  Downes  v.  Bidwell,  182  U.  S.,  244  (1901). 


202       American  Constitutional  Law 

which  secure  dependencies  against  legislation  mani- 
festly hostile  to  their  real  interests.  These  "princi- 
ples of  natural  justice"  as  applied  to  constitutional 
government  and  law  undoubtedly  mean  funda- 
mental rights  which  secure  persons,  anywhere  under 
American  jurisdiction,  "against  legislation  mani- 
festly hostile  to  their  real  interests";  for  the  essential 
interest  of  the  person, — that  is,  the  "citizen"  as 
defined  in  the  Constitution, — is  the  interest  of  the 
sovereign, — the  people  of  the  United  States,  or  of  a 
State. 

158.  It  is  evident  that  there  is  a  close  relation 
between  the  law  of  constitutional  limitations  and  the 
law  of  fundamental  rights  in  America.  A  limitation 
is  not  always  a  right,  in  law;  a  right  is  not  always  a 
limitation;  but  the  law  of  constitutional  government 
in  America — and  this  means  the  constitutional  law 
of  America — is  worked  out  by  judicial  interpretation 
of  these  limitations  and  these  rights. 

The  right  of  freedom  of  worship  and  of  exemption 
from  compulsion  to  attend  any  place  of  worship  is  not 
violated  by  reading  from  the  Bible  in  the  public 
schools,  or  reading  selections  from  the  Bible.  Such 
a  reading  does  not  convert  the  public  school  into  a 
religious  or  theological  seminary,  nor  is  the  reading 
a  conversion  of  the  public  money  to  the  use  of  a  re- 
ligious sect.  "I  am  not  able  to  see,"  observed  the 
court,  "why  extracts  from  the  Bible  should  be  pro- 


The  Law  of  Fundamental  Rights   203 

scribed,  when  the  youth  are  taught  no  better  authen- 
ticated truths  from  profane  history.  "^  If  under  the 
influence  of  a  religious  belief  (polygamy)  that  it  was 
right,  a  man  deliberately  married  a  second  time 
having  a  first  wife  living,  the  want  of  consciousness 
of  evil  intent  did  not  excuse  him,  but  criminal  intent 
would  be  implied.' 

The  compulsory  production  of  a  man's  private 
papers  to  establish  a  criminal  charge  against  him  is 
within  the  scope  of  the  Fourth  Amendment  to  the 
Constitution,  in  all  cases  in  which  a  search  or  seizure 
woiild  be;  because  it  is  a  material  ingredient,  and 
effects  the  sole  object  of  the  search  and  seizure. 
Compulsory  production  of  papers  is  unwarrantable 
search  and  seizure.  Such  unwarrantable  seizure  of 
books  and  papers  is  compelling  a  person  to  be  a 
witness  against  himself.  The  offense  consists  in  the 
"invasion  of  the  indefeasible  right  of  personal 
security."  The  manner  of  the  invasion  whether  by 
force  or  by  quiet  entrance  is  not  the  violation;  the 
violation  of  the  right  is  the  invasion  of  it,  in  whatever 
manner.  ^ 

The  law  is  perfectly  well  settled  that  the  first  ten 
amendments  to  the  Constitution,  commonly  known  as 

'  PfeiflFer  v.  Board  of  Education  of  the  City  of  Detroit,  77  N.  W. 
Rep.,  250  (1898). 

^  Reynolds  v.  United  States,  89  U.  S.,  145  (1878). 

3  Boyd  V.  United  States,  116  U.  S.,  616  (1886).  (Important 
historical  data  given  in  this  case.) 


204       American  Constitutional  Law 

the  Bill  of  Rights,  were  not  intended  to  lay  down  any 
novel  principles  of  government,  but  simply  to  embody 
certain  guaranties  and  immunities  which  we  had  in- 
herited from  our  English  ancestors,  and  which  had,  from 
time  immemorial,  been  subject  to  certain  well-recognized 
exceptions  arising  from  the  necessities  of  the  case.  In 
incorporating  these  principles  into  the  fundamental  law 
there  was  no  intention  of  disregarding  the  exceptions, 
which  continued  to  be  recognized  as  they  had  been 
formally  expressed.  Thus  the  freedom  of  speech  and 
of  the  press  (Art.  i.)  does  not  permit  the  publica- 
tion of  libels,  blasphemous,  or  indecent  articles,  or 
other  publications  injurious  to  public  morals  or  pri- 
vate reputation;  the  right  of  the  people  to  keep 
and  bear  arms  (Art.  x.,  ii)  is  not  infringed  by  laws 
prohibiting  the  carrying  of  concealed  weapons;  the 
provision  that  no  person  shall  be  twice  put  in  jeopardy, 
(Art.  V.)  does  not  prevent  a  second  trial,  if  upon  the 
first  trial  the  jury  failed  to  agree,  or  if  the  verdict  was 
set  aside  upon  the  defendant's  motion  (United  States  v. 
Ball,  163  U.  S.,  662,  672);  nor  does  the  provision  of  the 
same  article  that  no  one  shall  be  a  witness  against  himself 
impair  his  obligation  to  testify,  if  a  prosecution  against 
him  be  barred  by  the  lapse  of  time,  or  by  statutory 
enactment  (Brown  v.  Walker,  161  U.  S.,  591  and  cases 
cited);  nor  does  the  provision  that  an  accused  person 
shall  be  confronted  with  the  witnesses  against  him 
prevent  the  admission  of  dying  declarations,  or  the  de- 
positions of  witnesses  who  have  died  since  the  former 
trial.  ^ 

159.     "The   words    'due   process   of   law'    were 
undoubtedly  intended  to  convey  the  same  meaning 

»  Robertson  v.  Baldwin,  165  U.  S.,  275  (1897). 


The  Law  of  Fundamental  Rights   205 

as  the  words,  'by  the  law  of  the  land'  in  Magna 
Charta. "  This  means,  in  American  constitu- 
tional law,  to  use  Webster's  words  in  the  Dartmouth 
College  case, — "the  general  law — a  law  which  hears 
before  it  condemns;  which  proceeds  upon  inquiry, 
and  renders  judgment  only  after  trial."  Cooley 
states  it  as  meaning  "that  every  citizen  shall  hold 
his  life,  liberty,  property,  and  immunities,  under  the 
protection  of  the  general  rules  which  govern  society."  * 

This  means  that  whatever  is  the  actual  law  of  the 
land,  the  regular  and  established  practice  of  courts 
and  the  legal  landmarks  of  society  defines  the 
meaning  of  the  phrase  "due  process  of  law."  A 
man  who  by  the  laws  of  his  State  has  had  a  fair  trial 
in  a  court  of  justice,  according  to  the  modes  of 
proceeding  applicable  to  such  a  case  has  been  tried 
by  due  process  of  law.  ^ 

It  is  within  the  police  power  of  a  State  to  regulate 
the  hours  during  which  a  business,  say  washing  and 
ironing,  may  be  carried  on,  and  the  kind  of  building, 
whether  or  not  fireproof,  which  may  be  used  for 
such  business,  but  discrimination  against  citizens  or 
aliens  effecting  the  elimination  of  certain  citizens  or 
aliens  from  carrying  on  the  business,  while  others  are 

^Cooley,  Constitutional  Limitations,  353;  Ex  parte  Wall,  107 
U.  S.,  265  (1883).  Murray's  Lessee  v.  The  Hoboken  Land  and 
Improvement  Company,  18  Howard,  272  (1855),  considered  the 
leading  case. 

^  Hurtado  v,  California,  no  U.  S.,  516  (li 


2o6       American  Constitutional  Law 

permitted  to  carry  it  on  under  similar  conditions  is 
a  violation  of  the  Fourteenth  Amendment  which 
secures  to  every  person  the  equal  protection  of  the 
laws.  The  discrimination  is  none  the  less  uncon- 
stitutional because  the  person  discriminated  against 
is  an  alien,  when  the  treaty  between  the  United 
States  and  the  sovereignty  to  which  the  alien  owes 
allegiance  secures  to  the  alien  in  the  United  States 
"the  same  rights,  privileges,  immunities,  and  exemp- 
tions as  may  be  enjoyed  by  the  citizens  or  subjects 
of  the  most  favored  nation. "  For  a  treaty  is  part  of 
the  supreme  law  of  the  land.  ^ 

The  principle  here  also  includes  another  well- 
settled  rule  of  American  constitutional  law,  that 
while  a  State  may  exercise  its  police  power  within 
its  own  jurisdiction,  imposing  restrictions  on  foreign 
corporations  doing  business  within  its  territory,  it 
cannot  so  exercise  its  police  power  as  to  infringe  upon 
interstate  or  foreign  commerce.  Thus  a  police  regula- 
tion of  a  State  which  prevents  or  obstructs,  directly 
or  indirectly,  a  corporation  within  its  territory,  as  a 
party  that  is  engaged  or  would  be  engaged  in  com- 
merce, conflicts  with  the  power  of  Congress  to 
regulate  commerce  and  therefore  is  unconstitutional. 
But  police  regulation  of  the  corporation  as  to  other 
matters  is  not  a  violation  of  the  Fourteenth  Amend- 

» Yick  Wo  V.  Hopkins  (San  Francisco  Laundry  Cases),  Ii8  U.  S., 
356  (1886). 


The  Law  of  Fundamental  Rights   207 

ment. '  The  principle  here  is  "  to  exclude  everything 
that  is  arbitrary  and  capricious  in  legislation  affect- 
ing the  rights  of  the  citizen.  "^ 

160.  The  Fourteenth  Amendment  takes  no  police 
powers  from  the  States  that  were  reserved  to  them 
when  the  Constitution  was  adopted.  The  States 
may  still  do  lawfully  as  they  will  with  their  own,  and 
this  means  that  they  will  exercise  authority  over  their 
own  jurisdiction.  That  Amendment  "in  declaring 
that  no  State"  shall  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws,  undoubtedly  intended  not 
only  that  there  should  be  no  arbitrary  deprivation  of 
life  or  liberty,  or  arbitrary  spoliation  of  property, 
but  that  equal  protection  and  security  should  be 
given  to  all  under  Hke  circumstances  in  the  enjoy- 
ment of  their  personal  and  civil  rights;  that  all 
persons  should  be  equally  entitled  to  pursue  their 
happiness  and  acquire  and  enjoy  property;  that 
they  should  have  like  access  to  the  courts  of  the 
country   for   the   protection   of   their   persons   and 

'  Pembina  Mining  Company  v.  Pennsylvania,  125  U.  S.,  181 
(1888).  Barbier  y.- Connolly,  113  U.  S.,  27  (1885).  Holden  v. 
Hardy,  169  U.  S.,  366  (1898),  But  an  act  making  it  a  criminal 
offense  to  employ  a  female  in  any  clothing  factory  more  than  forty- 
eight  hours  in  any  one  week  violates  the  Fourteenth  Amendment  as 
violating  the  right  of  contract  and  being  class  legislation:  Ritchie  i;. 
State,  155  Illinois,  98  (1895). 

^  Dent  V.  West  Virginia,  129  U.  S.,  114  (1889).    And  cases  cited. 


2o8       American  Constitutional  Law 

property,  the  prevention  and  redress  of  wrongs,  and 
the  enforcement  of  contracts;  that  no  impediment 
should  be  interposed  to  the  pursuits  of  any  one 
except  as  applied  to  the  same  pursuits  by  others 
under  like  circumstances;  that  no  greater  burdens 
should  be  laid  upon  one  than  are  laid  upon  others 
in  the  same  calling  and  condition,  and  that  in  the 
administration  of  criminal  justice  no  different  or 
higher  punishment  should  be  imposed  upon  one  than 
such  as  is  prescribed  to  all  for  like  offenses.  But 
neither  the  Amendment,  broad  and  comprehensive 
as  it  is,  nor  any  other  Amendment  was  designed  to 
interfere  with  the  power  of  the  State,  sometimes 
termed  its  police  power,  to  prescribe  regulations  to 
promote  the  health,  peace,  morals,  education,  and 
good  order  of  the  people,  and  to  legislate  so  as  to 
increase  the  industries  of  the  State,  develop  its 
resources,  and  add  to  its  wealth  and  prosperity. 
From  the  very  necessities  of  society,  legislation  of  a 
special  character,  having  these  objects  in  view,  must 
often  be  had  in  certain  districts,  such  as  for  draining 
marshes  and  irrigating  arid  plains.  Special  burdens 
are  often  necessary  for  general  benefits, — for  supply- 
ing water,  preventing  fires,  lighting  districts,  clean- 
ing streets,  opening  parks,  and  many  other  objects. 
Regulations  for  these  purposes  may  press  with  more 
or  less  weight  upon  one  than  upon  another,  but  they 
are  designed,  not  to  impose  unequal  or  unnecessary 


The  Law  of  Fundamental  Rights    209 

restrictions  upon  any  one,  but  to  promote,  with  as 
little  individual  inconvenience  as  possible,  the 
general  good.  Though,  in  many  respects,  necessarily 
special  in  their  character,  they  do  not  furnish  just 
ground  of  complaint  if  they  operate  alike  upon  all 
persons  and  property  under  the  same  circumstances 
and  conditions.  Class  legislation,  discriminating 
against  some  and  favoring  others,  is  prohibited;  but 
legislation  which,  in  carrying  out  a  public  purpose,  is 
limited  in  its  application,  if  within  the  sphere  of  its 
operation  it  affects  alike  all  persons  similarly  situated 
is  not  within  the  Amendment.  ^ 

161.  The  right  of  trial  by  jury,  reserved  as  a 
fundamental  right,  is  a  common  law  right  of  great 
antiquity.  As  the  word  '  'jury"  is  used  in  the  Constitu- 

'  Barbier  v.  Connolly,  supra.  Mugler  v.  Kansas,  123  U.  S.,  623 
(1887).  The  power  to  regulate,  that  is,  the  jurisdiction  of  the 
police  power  of  the  State,  as  decided  in  Munn  v.  Illinois,  94  U.  S,, 
113  (1876),  includes  the  power  "to  provide  a  maximum  charge 
for  the  storage  and  handling  of  grain"  in  a  warehouse  privately 
owned.  This  is  settled  law,  but  careful  reading  should  be  made  of  the 
dissenting  opinions  in  this  case:  Budd  v.  New  York,  143  U.  S.,  517 
(1892),  sustaining  Munn  v.  Illinois,  with  strong  dissenting  opinions; 
Spring  Valley  Water  Works  i;.  Schottler,  no  U.  S.,  347  (1884)  sus- 
taining Munn  V.  Illinois,  with  strong  dissenting  opinions.  The 
economic  question  here  is  whether  the  State  can  fix  prices,  wages, 
compensation,  hours  of  labor,  etc.  In  this  connection  examine 
Lockner  v.  New  York,  198  U.  S.,  45  (1905),  sustaining  a  law  of  New 
York  State  making  it  a  penal  offense  for  any  employer  to  require  and 
permit  any  employee  to  work  for  him  more  than  sixty  hours  in  any 
one  week.  The  law  was  sustained  as  a  constitutional  exercise  by  the 
State  of  its  police  power;  but  see  dissenting  opinions.  The  per 
contra  was  "the  right  of  the  individual  to  liberty  of  person  and 
freedom  of  contract." 
14 


210       American  Constitutional  Law 

tion,  and  as  jury  trial  is  secured  by  the  Seventh 
Amendment,  its  meaning  must  be  discovered  from 
EngHsh  history  and  common-law  practice.  That 
history  and  that  practice  alike  prove  that  only  a 
court  of  law  can  have  a  jury,  and  that  a  body  of  men 
free  from  judicial  control  is  not  and  never  was  a 
common-law  jury;  that  is,  according  to  the  Seventh 
Amendment,  a  constitutional  jury  is  a  jury  in  a 
court  of  record,  and  a  number  of  men,  a  so-called 
jury  in  a  court  of  a  justice  of  the  peace,  is  not  a  jury 
in  the  sense  in  which  that  word  is  used  in  the  Con- 
stitution. A  court,  when  we  consider  its  derivation 
and  history,  comprises  the  judge  assisting  the  jury 
and  the  jury  assisting  the  judge.  The  right  of  trial 
by  jury  means  for  many  purposes  the  same  as  the 
right  to  due  process  of  law.  ^ 

162.  The  fundamentals  of  government  are  a 
unit,  like  government  itself,  and  he  who  rests  his 
case  on  one  fundamental  right  really  rests  his  case 
on  all.  The  principle  which  permeates  and  includes 
all  these  fundamentals — usually  set  forth  in  Bills  of 
Rights — is  thus  expressed  by  the  Supreme  Court: 

When  we  consider  the  nature  and  the  theory  of  our 
institutions  of  government,  the  principles  upon  which 
they  are  supposed  to  rest,  and  review  the  history  of  their 
development,  we  are  constrained  to  conclude  that  they 

'  Capital  Traction  Company  r.  Hof,  174  U.  S.,  i  (1899).  Many 
cases  cited  and  the  history  of  trial  by  jury  given. 


The  Law  of  Fundamental  Rights   211 

do  not  mean  to  leave  room  for  the  play  and  action  of 
purely  personal  and  arbitrary  power.  Sovereignty  itself 
is,  of  course,  not  subject  to  law,  for  it  is  the  author  and 
source  of  law ;  but  in  our  system,  while  sovereign  powers 
are  delegated  to  the  agencies  of  government,  sovereignty 
itself  remains  with  the  people,  by  whom  and  for  whom  all 
government  exists  and  acts.  And  the  law  is  the  defini- 
tion and  limitation  of  power.  It  is,  indeed,  quite  true, 
that  there  must  always  be  lodged  somewhere,  and  in 
some  person  or  body,  the  authority  of  final  decision; 
and  in  many  cases  of  mere  administration  the  respon- 
sibilit}'-  is  purely  political,  no  appeal  lying  except  to  the 
ultimate  tribunal  of  the  public  judgment,  exercised 
either  in  the  pressure  of  opinion  or  by  means  of  the 
suffrage.  But  the  fundamental  rights  to  life,  liberty, 
and  the  pursuit  of  happiness,  considered  as  individual 
possessions,  are  secured  by  those  maxims  of  constitu- 
tional law  which  are  the  monuments  showing  the  vic- 
torious progress  of  the  race  in  securing  to  men  the 
blessings  of  civilization  under  the  reign  of  just  and  equal 
laws,  so  that,  in  the  famous  language  of  the  Massa- 
chusetts Bill  of  Rights,  the  government  of  the  Common- 
wealth "may  be  a  government  of  laws  and  not  of  men," 
For  the  very  idea  that  one  man  may  be  compelled  to  hold 
his  life,  or  the  means  of  living,  or  any  material  right 
essential  to  the  enjoyment  of  life,  at  the  mere  will  of 
another,  seems  to  be  intolerable  in  any  country  where 
freedom  prevails,  as  being  the  essence  of  slavery  itself.* 

^  Mr.  Justice  Matthews  in  Yick  Wo  v.  Hopkins,  ii8  U.  S.,  356 
(1886). 


CHAPTER  XII 

THE  LAW  OF   CITIZENSHIP 

163.  "All  persons  bom  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States,  and  of  the  State 
wherein  they  reside."^  The  phrase  "subject  to  the 
jurisdiction  thereof"  excludes  "children  of  ministers, 
consuls,  and  citizens  or  subjects  of  foreign  states 
born  within  the  United  States.^  The  supreme  law 
clearly  recognizes  and  establishes  a  distinction  be- 
tween United  States  citizenship  and  State  citizen- 
ship. To  be  a  citizen  of  a  State,  a  person  must  reside 
within  that  State,  but  to  be  a  citizen  of  the  United 
States,  it  is  necessary  only  that  he  or  she  be  born  or 
natiu-alized  within  the  jurisdiction  of  the  United 
States.  Thus  American  citizenship,  like  the  opera- 
tion of  American  constitutional  law  in  all  its  aspects, 
is  a  matter  of  jurisdiction,  or  sovereignty. 

In  America  there  are  two  citizenships,   distinct 

'  Amendment  XIV.,  July  28,  1868.    It  will  be  noticed  here  that 
the  word  "territory"  is  not  used. 

^  Slaughter  House  Cases,  16  Wallace,  36  (1872). 

212 


The  Law  of  Citizenship  213 

from  each  other,  and  depending  upon  different 
characteristics  and  circumstances,  and  the  essential 
difference  is  caused  by  a  difference  of  jurisdiction. 
In  strict  conformity  to  this  distinction,  the  Constitu- 
tion prohibits  a  State  from  making  or  enforcing  "any 
law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States."''  The  limitation 
is  not  as  to  laws  affecting  the  privileges  and  immuni- 
ties of  citizens  of  the  several  States;  equality  of 
citizens  of  States  is  secured  by  another  provision.^ 
The  privileges  and  immunities  of  the  citizen  of  one 
State  removing  to  another  State  are  the  same,  no 
more,  no  less,  than  the  privileges  and  immunities  of 
the  citizens  of  the  State  into  which  he  or  she  re- 
moved. ^  The  privileges  and  immunities  of  citizens 
of  the  several  States  rest  for  security  and  protection 
with  the  States  themselves, — where  they  rested 
before  the  Constitution  was  made.  These  privileges 
and  immunities  are  not  placed  under  the  care  of  the 
United  States  except  so  far  as  the  Constitution 
declares  that,  "The  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  States."  These  privileges  and  im- 
munities of  citizens  of  the  several  States  are  funda- 
mental,'^ and  are  commonly  set  forth  in  Bills  of 

I  Amendment  XIV.  ^  Art.  iv.,  2:1.  3  See  p.  150, 

<  Canfield  v.  Coryell,  4  Washington,  C.  C,  371,  380;  Patd  v. 
Virginia,  8  Wallace,  180,  and  see  pp.  191-211  of  the  present  volume. 


214       American  Constitutional  Law 

Rights  found  in  the  State  constitutions.  The  sole 
purpose  of  the  Fourteenth  Amendment  is  to  declare 
to  the  several  States  that 

whatever  those  rights, — as  you  grant  or  estabHsh  them 
to  your  own  citizens,  or  as  you  Hmit,  or  quahfy,  or 
impose  restrictions  on  their  exercise,  the  same,  neither 
more  nor  less,  shall  be  the  measure  of  the  rights  of  citi- 
zens of  other  States  within  your  jurisdiction.^ 

164.  What  then  are  the  privileges  and  immimities 
of  citizens  of  the  United  States?  They  are  the 
privileges  and  immunities  secured  to  them  by  the 
Constitution.     Among  them  are 

to  come  to  the  seat  of  government  to  assert  any  claim  he 
may  have  upon  that  government;  to  transact  any  busi- 
ness he  may  have  with  it ;  to  share  its  offices ;  to  engage  in 
administering  its  functions ;  the  right  of  free  access  to  its 
seaports,  through  which  all  operations  of  foreign  com- 
merce are  conducted;  to  the  subtreasuries,  land  offices, 
and  courts  of  justice  in  the  several  States^;  "to  demand 
the  care  and  protection  of  the  federal  government  over 
his  life,  liberty,  and  property  when  on  the  high  seas,  or 
within  the  jurisdiction  of  a  foreign  government;  to 
peaceably  assemble  and  petition  for  redress  of  grievances; 
the  privilege  of  habeas  corpus;  to  use  the  navigable  v/aters 
of  the  United  States  however  they  may  penetrate  the 
territory  of  the  several  States;  all  rights  secured  to 
(American)  citizens  by  treaties  with  foreign  nations"; 
the  right,  on  his  own  volition  to  become  a  citizen  of  any 

'  Slaughter  House  Cases,  supra. 

*  Crandall  v,  Nevada,  6  Wallace,  36  (1867). 


The  Law  of  Citizenship  215 

State  of  the  United  States  by  a  bona  fide  residence  therein, 
with  the  same  rights  as  other  citizens  of  that  State.  ^ 

Thus  it  appears  that  the  rights  of  a  citizen — ^his 
"privileges  and  immunities" — are  measurable  by  the 
jurisdiction  of  the  sovereignty  to  which  he  owes 
allegiance.  Between  allegiance  and  protection  as 
between  citizenship  and  sovereignty  there  is  a 
reciprocal  relation. 

165.  The  Fourteenth  Amendment  did  not  add 
to  the  privileges  and  immunities  of  a  citizen.^  It 
simply  furnished  an  additional  guaranty  to  the  pro- 
tection of  such  as  he  already  had.  It  did  not  add 
the  right  of  suffrage  to  these  privileges  and  immuni- 
ties as  they  existed  at  the  time  of  the  adoption  of 
the  Constitution.  The  United  States  guarantees  to 
every  State  in  the  Union  a  republican  form  of 
government,^  but  this  is  not  a  guarantee  to  any 
citizen  of  the  right  to  vote,  nor  does  the  Constitution 
confer  that  right  on  any  person.'*  That  right  (or 
privilege,  as  it  is  in  strict  contemplation  of  law)  was 
not  the  same  among  the  original  States,  the  qualifica- 
tions for  voting  differing  widely  among  them,  and 

'  Slaughter  House  Cases,  supra.  (Some  additional  rights  are 
secured  citizens  of  the  United  States  by  Amendment  XIV.,  §  2;  and 
by  Amendments  XIII.  and  XV.) 

^  Minor  v.  Happersett,  21  Wallace,  162  (1874). 

3  Art.  iv.,  4. 

4  Minor  v.  Happersett,  supra.  (But  see  Ex  parte  Yarbrough, 
lioU.  S.,  651.) 


2i6       American  Constitutional  Law 

also  in  the  same  State  at  different  times. '  When  the 
Constitution  confers  citizenship  it  does  not  confer 
the  right  to  vote. 

There  is,  however,  a  right  to  vote  possessed  by 
certain  citizens  of  the  United  States,  namely  they 
who  vote  for  members  of  Congress  and  Senators  of 
the  United  States,  and  (by  implication)  electors  of 
President  and  Vice-President.  The  Constitution 
defines  electors  of  Congressmen  and  Senators  as  the 
same  persons  who  are  entitled  in  the  several  States 
to  vote  for  the  most  numerous  branch  of  the  State 
Legislature.^    The  United  States  thus 

adopts  the  qualification  thus  furnished  as  the  qualifica- 
tion of  its  own  electors  of  Congress.  It  is  not  true,  there- 
fore, that  electors  for  members  of  Congress  owe  their 
right  to  vote  to  the  State  law  in  any  sense  which  makes 
the  exercise  of  the  right  depend  exclusively  on  the  law 
of  the  State.  ^ 

The  United  States  has  sovereign  power  to  pre- 
scribe electoral  qualifications  for  its  own  citizens;  it 
has  chosen  to  adopt  State  qualifications.    The  non- 

'  These  qualifications,  in  the  aggregate,  have  been  of  age,  sex, 
residence,  religion,  property,  race,  and  tax-paying.  See  the  pro- 
visions in  the  State  constitutions  in  Charters  and  Constitutions,  7  vols., 
U.  S.  Government  Printing  Office,  1909;  and  a  detailed  account  of 
these  early  qualifications  (i 776-1850)  in  the  author's  Constitutional 
History  of  the  American  People,  i.,  ch.  iii. 

^  Art.  i.,  2:1;  Amendment  XVII. 

iEx  parte  Yarbrough,  no  U.  S.,  651,  653;  Wiley  v.  Sinkler,  179 
U.  S.,  58  (1900). 


The  Law  of  Citizenship  217 

exercise  of  the  power  does  not  work  denial  of  its 
existence.  The  principle  involved  is  one  of  sover- 
eignty, that  non-user  of  a  sovereign  right  cannot 
invalidate  the  right. 

166.  While  the  Fourteenth  Amendment  added 
nothing  to  the  rights  and  privileges  of  citizens,  for 
"the  equaHty  of  the  rights  of  citizens  is  a  principle 
of  republicanism,"'  it  guaranteed  those  rights;  but 
"the  power  of  the  national  government  is  limited 
to  the  enforcement  of  the  guaranty. "  ^  The  Amend- 
ment does  not  invest  Congress  with  power  to  legislate 
upon  subjects  which  are  within  the  domain  of  State 
legislation;  but  to  provide  modes  of  relief  against 
State  legislation,  or  State  action  "which  impairs  the 
privileges  and  immunities  of  citizens  of  the  United 
States,  or  which  injures  them  in  life,  liberty,  or 
property  without  due  process  of  law,  or  which  denies 
to  them  the  equal  protection  of  the  laws."  ^  Congress 
is  empowered  by  the  Amendment  "to  adopt  appro- 
priate legislation  for  correcting  the  effects  of  such 
prohibited  State  laws  and  State  acts,  and  thus  to 
render  them  effectually  null,  void,  and  innocuous.  "^ 

The  essential  matter  here  involved  is  sovereignty. 

The  true  doctrine  is,  that  whilst  the  States  are  really 
sovereign  as  to  all  matters  which  have  not  been  granted  to 
the  jurisdiction  and  control  of  the  United  States,  the  Con- 

'  United  States  v.  Cruikshank,  92  U.  S.,  542  (1875).  *  Idem. 

»  Civil  Rights  Cases,  109  U.  S.,  3  (1883).  ■*  Idem. 


2i8       American  Constitutional  Law 

stitution  and  constitutional  laws  of  the  latter  are  the 
supreme  law  of  the  land;  and  when  they  conflict  with  the 
laws  of  the  States,  they  are  of  paramount  authority  and 
obligation.  This  is  the  fundamental  principle  on  which 
the  authority  of  the  Constitution  is  based ;  and  unless  it 
be  conceded  in  practice,  as  well  as  theory,  the  fabric  of 
our  institutions,  as  it  was  contemplated  by  its  founders, 
cannot  stand.  The  questions  involved  have  respect  not 
more  to  the  autonomy  and  existence  of  the  States,  than 
to  the  continued  existence  of  the  United  States  as  a 
government  to  which  every  American  citizen  may  look 
for  security  and  protection  in  every  part  of  the  land. ' 

Thus,  in  appl' cation  of  this  principle,  the  law  of  a 
State  discriminating  against  persons  of  color  by 
eliminating  them  to  serve  as  jurors  is  unconstitu- 
tional.* So  too  is  an  act  of  Congress  unconstitu- 
tional, that  operates  as,  or  creates,  a  municipal  law 
for  the  regulation  of  private  rights,  and  that  places 
Congress  in  the  stead,  or  ofiSce  of  the  State  legis- 
latures, so  that  the  federal  Legislatiue,  instead  of 
enacting  laws  corrective  of  prohibited  State  laws,  or 
coimteracting  such  laws,  assumes  the  office  of  the 
State  legislatures  in  their  general  legislation.  Such 
Congressional  legislation  "steps  into  the  domain  of 
local  jurisprudence.  "^ 

167.  Such  unconstitutional  legislation  by  Con- 
gress was  the  Civil  Rights  Bill  of  1866,  which  declared 

'  Ex  parte,  Siebold,  100  U.  S.,  371  (1879). 

*  Strauder  v.  West  Virginia,  100  U.  S.,  303  (1879). 

» Civil  Rights  Cases,  109  U.  S.,  3  (1883). 


The  Law  of  Citizenship  219 

that  all  persons  within  the  jurisdiction  of  the  United 
States  should  be  entitled 

to  the  full  and  equal  enjo5maent  of  the  accommodations, 
advantages,  facilities,  and  privileges  of  inns,  public 
conveyances  on  land  or  water,  theaters,  and  other  places 
of  public  amusement;  subject  only  to  the  conditions  and 
limitations  established  by  law,  and  applicable  to  citizens 
of  every  race  and  color,  regardless  of  any  previous  condi- 
tion of  servitude.^ 

Here  again  the  essential  matter  is  one  of  juris- 
diction, or  sovereignty.  The  several  States  have 
jurisdiction  over  the  matters  comprised  within  the 
so-called  Civil  Rights  Bill.  Inn-keepers,  public 
carriers,  owners  or  managers  of  theaters  and  public 
halls  are  bound,  to  the  extent  of  their  facilities,  to 
furnish  proper  accommodations  to  all  unobjectionable 
persons  who  in  good  faith  apply  for  them.  No  race 
or  class  is  a  special  favorite  of  the  laws,  and  the 
enjoyment  of  accommodations  in  inns,  pubhc  con- 
veyances, and  places  of  amusement,  is  not  a  "privi- 
lege or  immunity"  of  a  citizen,  in  the  sense  that  he 
or  she  possesses  a  civil  or  legal  right  to  such  enjoy- 
ment. The  act,  or  decision,  of  a  mere  individual, — 
the  owner  of  an  inn,  or  of  a  public  conveyance,  or 
place  of  amusement,  refusing  such  accommodation, 
is  not  the  imposition  of  a  badge  of  slavery  or  involun- 

»  14  Statutes  at  Large,  27,  Ch.  31;  Enforcement  Act,  May  31, 
1870,  16  Statutes  at  Large,  140,  Ch.  114. 


220       American  Constitutional  Law 

tary  servitude  upon  the  applicant;  neither  does  such 
act  or  decision  inflict  a  civil  injury,  unless  the  law 
of  the  State  makes  such  act  or  decision  an  injury.  ^ 

The  principle  here  involved  is  illustrated  by  a  law 
of  California,  held  to  be  constitutional  by  the 
Supreme  Court  of  the  United  States,  that  "due 
process  of  law"  is  not  denied  to  a  person  who,  in  that 
State,  by  its  law,  was  "prosecuted  by  information," 
and  (as  was  claimed)  was  "tried  and  illegally  found 
guilty  of  (murder)  without  any  presentment  or 
indictment  of  any  grand  or  other  jury. "  ^ 

The  Court  sustained  the  State  law  as  securing  due 
process  of  law  in  principle, — that  "prosecution  by 
information"  instead  of  "indictment  of  a  jury"  is 
not  a  violation  of  the  principle  but  merely  a  variation 
of  the  form  of  due  process  of  law.  ^  In  other  words, 
the  California  law  in  no  way  disparaged  or  abridged 
the  privileges  or  immunities  of  the  citizen.  ■* 

'  Civil  Rights  Cases,  supra. 

^  That  is,  violating  Amendments  VI.  and  XIV. 

3  Hurtado  v.  California,  no  U,  S.,  516  (1884). 

4  "The  trial  by  jury  in  civil  cases  guaranteed  by  the  Seventh 
Amendment  (Walker  v.  Sauvinet,  92  U.  S.,  90)  and  the  right  to  bear 
arms  guaranteed  by  the  Second  Amendment  (Presser  v.  IlHnois,  116 
U.  S.,  252)  have  been  distinctly  held  not  to  be  privileges  and  immuni- 
ties of  citizens  of  the  United  States  against  abridgment  by  the  States, 
and  in  effect  the  same  decision  was  made  in  respect  of  the  guarantee 
against  prosecution,  except  by  indictment  of  a  grand  jury  in  the 
Fifth  Amendment  (Hurtado  v.  California,  no  U.  S.,  516)  and  with 
respect  to  the  right  to  be  confronted  with  witnesses,  contained  in  the 
Sixth  Amendment  (West  v.  Louisiana,  194  U.  S.,  258).  In  Maxwell 
V.  Dow,  176  U.  S.,  606,  when  the  plaintiff  in  error  had  been  convicted 


The  Law  of  Citizenship  221 

168.  The  principle  regulating  the  definition  of 
United  States  citizenship  is  that  principle  of  the 
common  law  which  recognizes  "the  ancient  rule  of 
citizenship  by  birth  within  the  dominion.  "^ 

Naturalization  is  an  artificial  birth  made  possible 
by  the  will  of  sovereignty.  It  is  effected  by  the 
operation  of  law, — and  in  America,  by  operation  of 
statutory  law  only.  Congress  has  not  the  exclusive 
power  to  pass  naturalization  laws,  but  it  has  the 
exclusive  power  "to  estabhsh  a  uniform  rule  of 
naturalization."^  The  power  exercised  here  is  sug- 
gested in  the  word  "  uniform.  "^  Congress  has  seen 
fit  to  vest  the  exercise  of  this  power  in  certain  courts 
of  law.  Strictly  speaking,  the  exercise  of  the  func- 
tion, in  any  of  its  aspects,  is  not  essentially  judicial. 
Courts  of  law  have  no  functions,  can  exercise  no 
functions,  and  no  functions  can  be  imposed  upon 

in  a  State  coiirt  of  a  felony  upon  an  information,  and  by  a  jury  of 
eight  persons,  it  was  held  that  the  indictment  made  indispensable  by 
the  Fifth  Amendment,  and  the  trial  by  jury  guaranteed  by  the  Sixth 
Amendment,  were  not  privileges  and  immtmities  of  citizens  of  the 
United  States,  as  those  words  were  used  in  the  Fourteenth  Amend- 
ment. .  .  .  We  conclude,  therefore,  that  the  exemption  from 
compulsory  self-incrimination  ('see  Amendment  V.')  is  not  a 
privilege  or  immunity  of  national  citizenship  guaranteed  by  this 
clause  ('the  first  clause')  of  the  Fourteenth  Amendment  against 
abridgment  by  the  States."  Twining  v.  State  of  New  Jersey,  211 
U.  S.,  78  (1908). 

»  United  States  v.  Wong  Kim  Ark,  169  U.  S.,  649  (1898). 

"  Art.  i.,  8  :  4. 

3  United  States  v.  Villato,  2  Dallas,  373 ;  Nishimura  Ekin  v.  U.  S., 
142  U.  S.,  651;  Luna  v.  U.  S.,  231  U.  S.,  9. 


222       American  Constitutional  Law 

them  except  those  of  a  judicial  nature.^  If  the 
courts  are  willing  to  exercise  a  ministerial  function 
and  are  empowered  to  exercise  it  by  Congress,  as  in 
the  naturalization  of  aliens,  that  exercise  cannot  be 
questioned  as  being  unconstitutional. 

169.  The  test  here  is  jurisdiction.  A  person  may 
by  voluntary  expatriation  become  allegiant  to  another 
jurisdiction  or  sovereignty,  but  he  cannot  escape 
allegiance  to  some  one  jurisdiction.  He  must  be 
citizen  or  subject  of  a  sovereignty.  As  all  property 
capable  of  ownership  must  have  an  owner,  so  must 
every  person  be  citizen  or  subject  of  some  sover- 
eignty. A  vessel,  wherever  it  may  be,  is  part  of  the 
territory  of  the  country  to  which  it  belongs.^  By 
parity  of  reasoning  a  person  is  deemed  allegiant  to 
some  jurisdiction  or  sovereignty.  A  vessel  owning 
no  jurisdiction  is  a  pirate. 

170.  The  Fifteenth  Amendment  declares  that  the 
right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or 
by  any  State  on  account  of  race,  color,  or  previous 
condition  of  servitude.     This  Amendment 

does  not  take  away  from  the  State  governments  in  a 
general  sense  the  power  over  suffrage  which  has  belonged 

'£x  parte,  Griffiths,  118  Indiana,  83  (1889),  citing  many  cases, 
{inter  alia)  Hayburn's  Case,  2  Dallas,  409,  n.;  United  States  v. 
Ferrera,  13  Howard,  40,  n.;  United  States  ex  rel.  v.  Duell,  172  U.  S., 
576  (1898),  also  to  be  consulted. 

'  United  States  v.  Rodgers,  150  U.  S.,  249  (1893). 


The  Law  of  Citizenship  223 

to  those  governments  from  the  beginning,  and  without 
the  provision  of  which  power  the  whole  fabric  upon 
which  the  division  of  State  and  national  authority  under 
the  Constitution  and  the  organization  of  both  govern- 
ments rest  would  be  without  support  and  both  the 
authority  of  the  nation  and  of  the  State  would  fall  to  the 
ground.  In  fact,  the  very  command  of  the  Amendment 
recognizes  the  possession  of  the  general  power  by  the 
States  since  the  Amendment  seeks  to  regulate  its  exercise 
as  to  the  particular  subject  with  which  it  deals. ^  The 
Amendment  does  not  change,  modify,  or  deprive  the 
States  of  their  full  power  as  to  stiffrage,  except  of  course 
as  to  the  subject  with  which  the  Amendment  deals,  and 
to  the  extent  that  obedience  to  its  command  is  necessary. 
Thus  the  authorit}^  over  the  suffrage  which  the  States 
possess,  and  the  limitations  which  the  Amendment 
imposes,  are  co-ordinate,  and  one  may  not  destroy  the 
other  without  bringing  about  the  destruction  of  both.  * 

But  while  the  Amendment  "gives  no  right  of 
suffrage" 

.  .  .  the  result  might  arise  that  as  a  consequence  of  the 
striking  down  of  a  discriminating  clause,  a  right  of 
suffrage  would  be  enjoyed  by  reason  of  the  generic 
character  of  the  provision  which  wotild  remain  after 
the  discrimination  was  stricken  out.^ 

'  Guinn  and  Beal  v.  United  States,  238  U.  S.,  347  (1915).     ^  Idem. 

3  Idem  and  citing  Ex  parte  Yarbrough  no  U.  S.,  651  (already 
considered  in  the  present  Chapter)  and  Neal  v.  Delaware,  103  U.  S., 
370.  The  decisions  of  the  Supreme  Court  do  not  conflict  with  a 
State  constitution  that  requires,  as  a  qualification  for  voting,  a 
literacy  test,  or  a  religious  test,  or  a  property  test,  or  indeed  any  test 
which  is  not  a  discrimination  on  account  of  race  color  or  previous 
condition  of  servitude. 


224       American  Constitutional  Law 

171.  Both  the  States  and  the  United  States  are 
forbidden  by  the  Constitution  to  enact  ex  post  facto 
laws.  The  prohibition  affects  every  citizen  as  se- 
curing him  from  the  peril  of  legislation  of  the  kind 
forbidden.  It  is  a  sweeping  limitation  of  power  for 
his  or  her  benefit,  and  operates  for  all  citizens  of 
whatever  age,  condition,  or  circumstance.  An  ex 
post  facto  law  is  one  that  makes  an  action  done  be- 
fore the  passing  of  the  law,  and  which  was  innocent 
when  done,  criminal,  and  punishes  that  action;  that 
aggravates  a  crime,  or  makes  it  greater  than  it  was 
when  committed;  that  changes  the  punishment  and 
inflicts  a  greater  punishment  than  the  law  annexed 
to  the  crime  when  committed;  that  alters  the  legal 
rules  of  evidence,  and  receives  less  or  different 
testimony  than  the  law  required,  at  the  time  of 
the  commission  of  the  offense,  in  order  to  convict  the 
offender.  But  no  law  is  ex  post  facto  within  the 
constitutional  prohibition  that  "mollifies  the  rigor 
of  the  criminal  law."  Only  those  laws  are  ex  post 
facto  which  "create,  or  aggravate  the  crime,  or 
increase  the  punishment,  or  change  the  rules  of 
evidence,  for  the  purpose  of  conviction."' 

*  Calder  v.  Bull,  3  Dallas,  386  (1798) ;  Kring  v.  Missouri,  107  U.  S., 
221  (1882);  Thompson  v.  Utah,  170  U.  S.,  343  (1898).  All  the  vState 
constitutions  forbid  ex  post  facto  laws. 

The  right  secured  to  the  citizen  by  the  constitutional  inhibition 
of  ex  post  facto  legislation  forms  part  of  his,  or  her,  privileges  and 
immunities;  for  though  the  inhibition  cannot  be  said  to  be  derived 


The  Law  of  Citizenship  225 

172.  But  he  who,  under  State  law,  voluntarily 
waived  his  right  of  trial  by  jury  and  elected  to  be 
tried  by  the  court  and  by  it  was  adjudged  guilty  and 
was  condemned  to  be  hanged,  was  not  deprived  of 
any  right,  privilege,  or  immunity  for  his  protection 
by  the  Fourteenth  Amendment,  but  was  tried  and 
condemned  in  strict  accordance  with  the  forms  pre- 
scribed by  the  constitution  and  laws  of  the  State, 
and  with  special  regard  to  the  rights  of  accused 
persons  imder  its  jurisdiction.  ^  A  person  may  waive 
a  fundamental  right  ^  but  neither  the  State  nor  the 
United  States  can  lawfully  invade  the  indefeasible 
right  of  a  person  to  personal  security^;  such  invasion 
constitutes  an  "unwarrantable  search  and  seizure." 
The  service  of  a  lawful  warrant  operates  practically 
as  a  waiver  of  right  by  the  person  searched  or  seized ; 
but  were  a  person  to  waive  his  right,  say  of  trial  by 
jury,  such  waiver  would  not  confer  power  on  any 
court  or  jury  to  try  him.  "Consent  can  never 
confer  jurisdiction . "  '^ 

173.  An  act  of  Congress  that  no  person  shall  be 
excused   from    attending    and    testifying,    or   from 


from  the  common  law, — and  may  be  said  to  be  essentially  statutory, 
it  has  become  recognized  as  a  fundamental  right  and  of  rank  with 
any  other  fundamental  right. 

'  HoUinger  v.  Davis,  146  U.  S.,  314  (1892).  ^  Idem. 

3  Boyd   V.  United  States,   116    U.    S.,  616  (1886).     The  right 
covers  "persons,  houses,  papers,  and  effects. "    Art.  iv. 

4  Harris  v.  People,  128  Illinois,  585  {li 

15 


226       American  Constitutional  Law 

producing  books,  papers,  tariffs,  contracts,  agree- 
ments, and  documents  before  the  Interstate  Com- 
merce Commission,  or  in  obedience  to  its  subpoena, 
on  the  ground  that  he  might  thus  be  compelled  to  be 
a  witness  against  himself  and  so  become  subject  to 
penalty  is  constitutional  because  its  additional 
provision  immuning  him  from  future  prosecution  by 
reason  of  his  evidence  thus  given  sufficiently  satisfies 
the  constitutional  guarantee  of  protection.^ 

So  too  the  stenographic  report  of  testimony  given 
in  court,  supported  by  the  oath  of  the  stenographer 
that  it  is  a  correct  transcript  of  his  notes  and  of 
the  testimony  of  a  deceased  witness  is  competent 
evidence,  is  admissible,  and  does  not  conflict  with  the 
provision  of  the  Constitution  that  an  accused  person 
shall  have  the  right  "to  be  confronted  with  the 
witnesses  against  him.  "^  The  principle  here  is 
essentially  one  of  sovereignty, — the  court  declaring: 
"the  rights  of  the  public  shall  not  be  wholly  sacrificed 
in  order  that  an  incidental  benefit  may  be  preserved 
to  the  accused.  "^  The  sovereign  right  of  a  State,  or 
of  the  United  States  with  respect  to  citizenship,  is 
sufficient,  in  either,  to  effect  the  purposes  for  which 
either  exists;  but  in  the  American  dual  system  of 

'  Art.  v.,  Act  of  February  ii,  1893,  Statutes  at  Large,  443;  Brown 
V.  Walker,  161  U.  S.,  591  (1896). 

^Amendment  VI.    Mattox  v.  United  States,   156  U.  S.,  237 

(1895). 
3  Idem. 


The  Law  of  Citizenship  227 

government,  citizenship  has  fundamental  rights, 
which  are  guaranteed,  and  poHtical  privileges,  which 
are  conferred  and  protected. 

174.  Civil  rights  and  their  guarantees,  both  in 
the  States  and  in  the  United  States,  are  formulated 
as  limitations  on  government, — as  fundamentals 
reserved  "and  above  any  constitutional  sanction." 
These  rights  include  those  of  religious  liberty,  per- 
sonal security,  security  of  dwellings,  papers,  and 
property,  personal  freedom,  due  process  of  law,  jury- 
trial,  and  equal  protection  of  the  laws.  The  line  of 
demarcation  between  these  fundamental  rights  is 
not  easily  drawn,  nor  even  drawn  with  precision. 
These  rights,  being  fundamental  rights,  exist  inde- 
pendent of  the  government  which  the  people  of  a 
State,  or  the  people  of  the  United  States  ordain  and 
establish.  That  sovereignty — the  people  them- 
selves— has  power  to  alter,  to  modify,  or  even  to 
destroy  these  rights,  or  any  of  them,  must  be  ad- 
mitted, but  that  sovereignty  ever,  under  a  republican 
form  of  government,  will  alter,  modify,  or  destroy 
these  rights,  may  with  equal  assurance  be  denied. 

175.  The  political  privileges  of  citizenship  rest  on 
a  different  conception  of  government.  Political 
privileges — of  which  the  most  important  are  the 
right  to  vote  and  the  right  to  be  voted  for,  and  to 
execute  an  office  because  of  election  to  office — are 
not  fundamental,  that  is,  they  are  not  civil  rights. 


228       American  Constitutional  Law 

The  State,  or  the  United  States,  has  the  right  to 
prescribe  qualifications  for  an  elector,  or  for  candi- 
dacy for  any  office.  Usually  these  qualifications  are 
of  age,  residence,  sex,  and  tax-paying, — the  people  of 
the  United  States  having  also  declared  that  the  right 
of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color,  or  previous  condition 
of  servitude.  This  inhibition  does  not  make  the  fact 
of  race,  or  color,  or  previous  condition  of  servitude 
a  fundamental  civil  right  guaranteed  by  the  United 
States  under  the  Constitution.  In  no  sense  does  the 
Fourteenth  Amendment  confuse  civil  and  political 
rights.  No  person  can  vote  imless  he  or  she  has 
complied  with  the  requirements  (qualifications)  for 
voting,  prescribed  by  the  State  in  which  he  or  she 
resides.  No  person  acquires  civil  rights  by  a  similar 
compliance.  By  birth  or  naturalization  (and  naturali- 
zation is  a  sort  of  legal  birth  by  the  will  of  the 
sovereign),  a  person  possesses  civil  rights,  but  no 
person  possesses  the  privilege  of  voting  either  by 
birth  or  by  naturalization.  The  privilege  of  voting 
may  be  lost  by  removing  from  a  polling  district;  by 
neglect  to  register ;  by  neglect  to  pay  a  tax, — in  brief, 
by  failure  to  comply  with  any  electoral  law  of  the 
State ;  but  no  person  forfeits  his  or  her  civil  rights  by 
mere  neglect.  Infants,  minors,  adults,  men,  women, 
and  children  possess  equal  civil  rights.    Impairment, 


The  Law  of  Citizenship  229 

suspension,  forfeiture  of  civil  rights  is  effected  only 
by  commission  of  crime,  that  is,  by  a  voluntary  act, 
inimical  to  sovereignty  itself.  Such  an  act  also  cuts 
off  the  privilege  of  voting,  or  of  being  voted  for  with 
effect  of  induction  into  office,  because  the  person  who 
imperils  sovereignty  by  commission  of  a  crime  would, 
in  all  probability,  imperil  sovereignty  by  voting. 
The  exercise  of  the  suffrage  has  long  continued  in 
America,  and,  both  in  laws  and  in  constitutions,  is 
commonly  referred  to  as  a  "right."  The  tendency 
of  privileges  is  to  become  rights.  In  America,  how- 
ever, the  republican  form  of  government  exists  both 
in  the  States  and  in  the  United  States.  Practically, 
civil  rights  and  political  privileges  are  determined  by 
the  will  of  the  people. 


Appendix 

THE 
CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA 

(Compared  with  the  Original  in  the  Department 
OF  State) 

WE  THE  PEOPLE^  of  the  United  States,  in  Order  to 
form  a  more  perfect  Union,  establish  Justice,  insure 
domestic  Tranquility,  provide  for  the  common  defence, 
promote  the  general  Welfare,  and  secure  the  Blessings 
of  Liberty  to  ourselves  and  our  Posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of 
America. 

ARTICLE  I. 

Section  i. 

I.  All  legislative  Powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of 
a  Senate  and  House  of  Representatives. 

Section  2. 

I.  The  House  of  Representatives  shall  be  composed  of 
Members  chosen  every  second  Year  by  the  People  of  the 

'  In  the  original  the  clauses  are  not  numbered,  nor  is  there  any 
title  to  the  document.    It  begins,  "We  the  People." 

230 


The  Constitution  231 

several  States,  and  the  Electors  in  each  State  shall  have 
the  Qualifications  requisite  for  Electors  of  the  most 
numerous  Branch  of  the  State  Legislature. 

2.  No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty-five  Years,  and  been 
seven  Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

3.  "Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Numbers, 
which  shall  be  determined  by  adding  to  the  whole  Ntmi- 
ber  of  free  Persons,  including  those  bound  to  Service  for  a 
Term  of  Years,  and  excluding  Indians  not  taxed,  three 
fifths  of  all  other  Persons.  The  actual  Entmaeration  shall 
be  made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every  subse- 
quent Term  of  ten  Years,  in  such  Manner  as  they  shall  by 
Law  direct.  The  Ntmiber  of  Representatives  shall  not  ex- 
ceed one  for  every  thirty  Thousand,  but  each  State  shall 
have  at  Least  one  Representative ;  and  until  such  enumer- 
ation shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  chuse  three,  Massachusetts  eight,  Rhode  Island 
and  Providence  Plantations  one,  Connecticut  five,  New 
York  six,  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten,  North  Carolina  five, 
South  Carolina  five,  and  Georgia  three. 

4.  When  vacancies  happen  in  the  Representation 
from  any  State,  the  Executive  Authority  thereof  shall 
issue  Writs  of  Election  to  fill  such  Vacancies. 

5.  The  House  of  Representatives  shall  chuse  their 
Speaker  and  other  OflBcers;  and  shall  have  the  sole  Power 
of  Impeachment. 

'  See  Amendments  XIIL,  XIV.,  XV.,  XVI. 


232       American  Constitutional  Law 
Section  3. 

1 .  'The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legisla- 
ture thereof,  for  six  Years;  and  each  Senator  shall  have 
one  Vote. 

2.  Immediately  after  they  shall  be  assembled  in 
Consequence  of  the  first  Election,  they  shall  be  divided 
as  equally  as  may  be  into  three  Classes.  The  Seats  of 
the  Senators  of  the  first  Class  shall  be  vacated  at  the 
Expiration  of  the  second  Year,  of  the  second  Class  at 
the  Expiration  of  the  fourth  Year,  and  of  the  third  Class 
at  the  Expiration  of  the  sixth  Year ;  so  that  one  third 
may  be  chosen  every  second  Year;  and  if  Vacancies 
happen  by  Resignation  or  otherwise,  during  the  Recess  of 
the  Legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Vacancies. 

3.  No  Person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  imless 
they  be  equally  divided. 

5.  The  Senate  shall  chuse  their  other  Officers,  and 
also  a  President  pro  tempore  in  the  Absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  Ofiice  of  President 
of  the  United  States. 

6.  The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  Purpose,  they 
shall  be  on  Oath  or  Affirmation.    When  the  President  of 

» See  Amendment  XVII. 


The  Constitution  233 

the  United  States  is  tried,  the  Chief  Justice  shall  preside: 
And  no  Person  shall  be  convicted  without  the  Concur- 
rence of  two  thirds  of  the  Members  present. 

7.  Judgment  in  Cases  of  Impeachment  shall  not 
extend  further  than  to  removal  from  Office,  and  dis- 
qualification to  hold  and  enjoy  any  Office  of  honor, 
Trust,  or  Profit  under  the  United  States:  but  the  Party 
convicted  shall,  nevertheless,  be  liable  and  subject  to 
Indictment,  Trial,  Judgment  and  Punishment,  according 
to  Law. 

Section  4. 

1.  The  Times,  Places  and  Manner  of  holding  Elections 
for  Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof;  but  the  Congress 
may  at  any  time  by  Law  make  or  alter  such  Regulations, 
except  as  to  the  Places  of  chusing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday  in 
December,  imless  they  shall  by  Law  appoint  a  different 
Day. 

Section  5/ 

1.  Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a 
Majority  of  each  shall  constitute  a  Quonrm  to  do  Busi- 
ness; but  a  smaller  Ntmiber  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  Attendance  of 
absent  Members,  in  such  Manner,  and  imder  such 
Penalties  as  each  House  may  provide. 

2.  Each  House  may  determine  the  Rules  of  its  Pro- 
ceedings, punish  its  Members  for  disorderly  Behavior, 
and,  with  the  Concurrence  of  two  thirds,  expel  a  Member. 


234       American  Constitutional  Law 

3.  Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrec}'';  and  the 
Yeas  and  Nays  of  the  Members  of  either  House  on  any 
question  shall,  at  the  Desire  of  one  fifth  of  those  Present, 
be  entered  on  the  Journal. 

4.  Neither  House,  during  the  Session  of  Congress, 
shall,  without  the  Consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  Place  than  that  in 
which  the  two  Houses  shall  be  sitting. 

Section  6. 

1.  The  Senators  and  Representatives  shall  receive  a 
Compensation  for  their  Services,  to  be  ascertained  by 
Law,  and  paid  out  of  the  Treasury  of  the  United  States. 
They  shall  in  all  Cases,  except  Treason,  Felony  and 
Breach  of  the  Peace,  be  privileged  from  Arrest  during 
their  Attendance  at  the  Session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same ;  and  for  any 
Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place. 

2.  No  Senator  or  Representative  shall,  during  the 
Time  for  which  he  was  elected,  be  appointed  to  any  civil 
Office  under  the  Authority  of  the  United  States,  which 
shall  have  been  created,  or  the  Emoluments  whereof 
shall  have  been  increased  during  such  time;  and  no 
Person  holding  any  Office  under  the  United  States,  shall 
be  a  member  of  either  House  during  his  Continuance  in 
Office. 

Section  7. 

I.  All  Bills  for  raising  Revenue  shall  originate  in  the 
House  of  Representatives ;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other  Bills. 


The  Constitution  235 

2.  Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become  a 
Law,  be  presented  to  the  President  of  the  United  States; 
If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  Objections,  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  Objections  at  large  on 
their  Journal,  and  proceed  to  reconsider  it.  If  after  such 
Reconsideration  two  thirds  of  that  House  shall  agree  to 
pass  the  Bill,  it  shall  be  sent,  together  with  the  Objec- 
tions, to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of  that  House 
it  shall  become  a  Law.  But  in  all  such  Cases  the  Votes 
of  both  Houses  shall  be  determined  by  Yeas  and  Nays, 

,  and  the  Names  of  the  Persons  voting  for  and  against 
the  Bill  shall  be  entered  on  the  Journal  of  each  House 
respectively.  If  any  Bill  shall  not  be  returned  by  the 
President  within  ten  Days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  Same  shall  be  a 
Law,  in  like  Manner  as  if  he  had  signed  it,  unless  the 
Congress  by  their  Adjournment  prevent  its  Return,  in 
which  Case  it  shall  not  be  a  Law. 

3.  Every  Order,  Resolution,  or  Vote  to  which  the 
Conciirrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  Adjournment), 
shall  be  presented  to  the  President  of  the  United  States ; 
and  before  the  Same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed 
by  two  thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  Rules  and  Limitations  prescribed  in  the 
Case  of  a  BiU. 

Section  8. 

I.  The  Congress  shall  have  Power  to  lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts 


236       American  Constitutional  Law 

and  provide  for  the  common  Defence  and  general  Welfare 
of  the  United  States;  but  all  Duties,  Imposts  and  Excises 
shall  be  uniform  throughout  the  United  States; 

2.  To  borrow  Money  on  the  credit  of  the  United 
States ; 

3.  To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes; 

4.  To  establish  a  uniform  Rule  of  Naturalization,  and 
uniform  Laws  on  the  subject  of  Bankruptcies  throughout 
the  United  States; 

5.  To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures ; 

6.  To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States; 

7.  To  establish  Post-Ofiices  and  Post  Roads; 

8.  To  promote  the  Progress  of  Science  and  useful  Arts, 
by  securing  for  limited  Times  to  Authors  and  Inventors 
the  exclusive  Right  to  their  respective  Writings  and 
Discoveries ; 

9.  To  constitute  Tribunals  inferior  to  the  Supreme 
Court; 

10.  To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offences  against  the  Law 
of  Nations; 

11.  To  declare  War,  grant  Letters  of  Marque  and 
Reprisal,  and  make  Rules  concerning  Captures  on  Land 
and  Water; 

12.  To  raise  and  support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a  longer  Term  than 
two  Years; 

13.  To  provide  and  maintain  a  Navy; 

14.  To  make  Rules  for  the  Government  and  Regula- 
tion of  the  land  and  naval  Forces ; 

15.  To  provide  for  calling  forth  the  Militia  to  execute 


The  Constitution  237 

the  Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions ; 

16.  To  provide  for  organizing,  arming,  and  disciplin- 
ing the  Militia,  and  for  governing  such  Part  of  them 
as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respectively,  the 
Appointment  of  the  Officers,  and  the  Authority  of 
training  the  Militia  according  to  the  discipline  pre- 
scribed by  Congress; 

17.  To  exercise  exclusive  Legislation  in  all  Cases 
whatsoever,  over  such  District  (not  exceeding  ten  Miles 
square)  as  may,  by  Cession  of  particular  States,  and  the 
Acceptance  of  Congress,  become  the  Seat  of  the  Govern- 
ment of  the  United  States,  and  to  exercise  like  Authority 
over  all  Places  purchased  by  the  Consent  of  the  Legisla- 
ture of  the  State  in  which  the  Same  shall  be,  for  the 
Erection  of  Forts,  Magazines,  Arsenals,  dock- Yards, 
and  other  needful  Buildings ; — And 

18.  To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing  Powers, 
and  all  other  Powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  Department 
or  Officer  thereof. 

Section  9. 

1.  The  Migration  or  Importation  of  such  Persons  as 
any  of  the  States  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  Year  one  thousand  eight  hundred  and  eight,  but  a 
Tax  or  duty  may  be  imposed  on  such  Importation,  not 
exceeding  ten  dollars  for  each  Person. 

2.  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion  or 
Invasion  the  public  Safety  may  require  it. 


238       American  Constitutional  Law 

3.  No  Bill  of  Attainder,  or  ex  post  facto  Law  shall  be 
passed. 

4.  No  Capitation  or  other  direct  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  Enumeration  herein 
before  directed  to  be  taken. 

5.  No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

6.  No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over 
those  of  another:  nor  shall  Vessels  bound  to,  or  from,  one 
State,  be  obliged  to  enter,  clear,  or  pay  Duties,  in  another. 

7.  No  money  shall  be  drawn  from  the  Treasury,  but  in 
Consequence  of  Appropriations  made  by  Law;  and  a 
regular  Statement  and  Account  of  the  Receipts  and 
Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

8.  No  Title  of  Nobility  shall  be  granted  by  the  United 
States:  And  no  Person  holding  any  Office  of  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the 
Congress,  accept  of  any  present.  Emolument,  Office,  or 
Title,  of  any  kind  whatever,  from  any  King,  Prince,  or 
foreign  State. 

Section  id. 

1.  No  State  shall  enter  into  any  Treaty,  Alliance,  or 
Confederation;  grant  Letters  of  Marque  and  Reprisal; 
coin  Money;  emit  Bills  of  Credit;  make  any  Thing  but 
gold  and  silver  Coin  a  Tender  in  Payment  of  Debts;  pass 
any  Bill  of  Attainder,  ex  post  facto  Law,  or  Law  impair- 
ing the  Obligation  of  Contracts,  or  grant  any  title  of 
NobiHty. 

2.  No  State  shall,  without  the  Consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  except 
what  may  be  absolutely  necessary  for  executing  it's 


The  Constitution  239 

inspection  Laws;  and  the  net  Produce  of  all  Duties  and 
Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall 
be  for  the  Use  of  the  Treasury  of  the  United  States ;  and 
all  such  Laws  shall  be  subject  to  the  Revision  and  Con- 
troul  of  the  Congress. 

3.  No  State  shall,  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops  or  Ships  of  War, 
in  time  of  Peace,  enter  into  any  Agreement  or  Compact 
with  another  State,  or  with  a  foreign  Power,  or  Engage 
in  War,  imless  actually  invaded,  or  in  such  imminent 
Danger  as  will  not  admit  of  delay. 


ARTICLE   II. 
Section  i. 

1 .  The  Executive  Power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  office 
during  the  Term  of  four  Years,  and,  together  with  the 
Vice-President,  chosen  for  the  same  Term,  be  elected  as 
follows : 

2.  Each  State  shall  appoint,  in  such  manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  Number  of  Senators  and  Representa- 
tives to  which  the  State  may  be  entitled  in  the  Congress: 
but  no  Senator  or  Representative,  or  Person  holding  an 
Office  of  Trust  or  Profit  imder  the  United  States,  shall  be 
appointed  an  Elector. 

3.  ^The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  Ballot  for  two  Persons,  of  whom  one  at  least 
shall  not  be  an  Inhabitant  of  the  same  State  with  them- 
selves. And  they  shall  make  a  List  of  all  the  Persons 
voted  for,  and  of  the  Number  of  Votes  for  each;  which 

'  See  Amendment  XII. 


240       American  Constitutional  Law 

List  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  Seat  of  the  Government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  Presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  Certificates,  and  the  Votes 
shall  then  be  counted.  The  Person  having  the  greatest 
number  of  Votes  shall  be  the  President,  if  such  Number 
be  a  Majority  of  the  whole  Niimber  of  Electors  appointed; 
and  if  there  be  more  than  one  who  have  such  a  Majority, 
and  have  an  equal  Number  of  Votes,  then  the  House  of 
Representatives  shall  immediately  chuse,  by  Ballot  one 
of  them  for  President;  and  if  no  Person  have  a  Majority, 
then  from  the  five  highest  on  the  List,  the  said  House  shall 
in  like  manner  chuse  the  President.  But  in  chusing  the 
President,  the  Votes  shall  be  taken  by  States,  the  Repre- 
sentation from  each  State  having  one  vote;  A  quonmi 
for  this  Purpose  shall  consist  of  a  Member  or  Members 
from  two  thirds  of  the  States,  and  a  Majority  of  all  the 
States  shall  be  necessary  to  a  Choice.  In  every  Case, 
after  the  Choice  of  the  President,  the  Person  having  the 
greatest  Number  of  Votes  of  the  Electors  shall  be  the 
Vice-President.  But  if  there  should  remain  two  or  more 
who  have  equal  Votes,  the  Senate  shall  chuse  from  them 
by  Ballot  the  Vice-President. 

4.  The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  day  on  which  they  shall  give  their 
Votes;  which  Day  shall  be  the  same  throughout  the 
United  States. 

5.  No  Person  except  a  natural-born  Citizen,  or  a 
Citizen  of  the  United  States,  at  the  time  of  the  Adoption 
of  this  Constitution,  shall  be  eligible  to  the  Office  of 
President;  neither  shall  any  Person  be  eligible  to  that 
Office  who  shall  not  have  attained  to  the  Age  of  thirty- 
five  Years,  and  been  fourteen  Years  a  Resident  within 
the  United  States. 


The  Constitution  241 

6.  In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  discharge 
the  Powers  and  Duties  of  the  said  Office,  the  Same  shall 
devolve  on  the  Vice-President,  and  the  Congress  may  by 
Law  provide  for  the  Case  of  Removal,  Death,  Resigna- 
tion, or  Inability  both  of  the  President  and  Vice-President 
declaring  what  Officer  shall  then  act  as  President,  and 
such  Officer  shall  act  accordingly,  until  the  disability  be 
removed,  or  a  President  shall  be  elected. 

7.  The  President  shall,  at  stated  Times,  receive  for  his 
Services,  a  Compensation,  which  shall  neither  be  In- 
creased nor  diminished  during  the  Period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  Period,  any  other  Emolument  from  the  United 
States,  or  any  of  them. 

8.  Before  he  enter  on  the  Execution  of  his  Office  he 
shall  take  the  following  Oath  or  Affirmation: — "I  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  Office  of  President  of  the  United  States,  and  will, 
to  the  best  of  my  Ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 

Section  2. 

1.  The  President  shall  be  Commander  in  Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  Militia 
of  the  several  States,  when  called  into  the  actual  Service 
of  the  United  States;  he  may  require  the  Opinion,  in 
writing,  of  the  principal  Officer  in  each  of  the  Executive 
Departments,  upon  any  Subject  relating  to  the  Duties  of 
their  respective  Offices,  and  he  shall  have  Power  to  grant 
Reprieves  and  Pardons  for  Offences  against  the  United 
States,  except  in  Cases  of  Impeachment. 

2.  He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two 

16 


242       American  Constitutional  Law 

thirds  of  the  Senators  present  concur;  and  he  shall 
nominate,  and  by  and  with  the  Advice  and  Consent  of 
the  Senate,  shall  appoint  Ambassadors,  other  Public 
Ministers,  and  Consuls,  Judges  of  the  Supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Appoint- 
ments are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  Law:  but  the  Congress  may  by 
Law  vest  the  Appointment  of  such  inferior  Officers,  as 
they  think  proper,  in  the  President  alone,  in  the  Courts 
of  Law,  or  in  the  Heads  of  Departments. 

3.  The  President  shall  have  Power  to  fill  up  all 
Vacancies  that  may  happen  during  the  Recess  of  the 
Senate,  by  granting  Commissions  which  shall  expire  at 
the  End  of  the  next  Session. 

Section  3. 

I.  He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  State  of  the  Union,  and  recommend 
to  their  Consideration  such  Measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary 
Occasions,  convene  both  Houses,  or  either  of  them,  and 
in  Case  of  Disagreement  between  them,  with  Respect 
to  the  time  of  Adjournment,  he  may  adjoiirn  them  to 
such  Time  as  he  shall  think  proper;  he  shall  receive  Am- 
bassadors and  other  public  Ministers;  he  shall  take  Care 
that  the  Laws  be  faithfully  executed,  and  shall  com- 
mission all  the  Officers  of  the  United  States. 

Section  4. 

I.  The  President,  Vice-President,  and  all  civil  Officers 
of  the  United  States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  Conviction  of,  Treason,  Bribery, 
or  other  high  Crimes  and  Misdemeanors 


The  Constitution  243 

ARTICLE  III. 

Section  i. 

I.  The  judicial  Power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  Courts 
as  the  Congress  may,  from  time  to  time,  ordain  and 
establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behavior,  and 
shall,  at  stated  Times,  receive  for  their  Services  a  Com- 
pensation, which  shall  not  be  diminished  during  their 
Continuance  in  Office. 

Section  2. 

1.  ^The  judicial  Power  shall  extend  to  all  Cases,  in 
Law  and  Equity,  arising  under  this  Constitution,  the 
Laws  of  the  United  States,  and  Treaties  made,  or  which 
shall  be  made,  under  their  Authority; — to  all  Cases 
affecting  Ambassadors,  other  public  Ivlinisters  and 
Consuls; — to  all  Cases  of  admiralty  and  maritime  Juris- 
diction; to  Controversies  to  which  the  United  States 
shall  be  a  Party; — to  Controversies  between  two  or  more 
States; — between  a  State  and  Citizens  of  another  State; 
— between  Citizens  of  different  States, — between  Citi- 
zens of  the  same  State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State,  or  the  Citizens 
thereof,  and  foreign  States,  Citizens,  or  Subjects. 

2.  In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State  shall 
be  a  Party,  the  Supreme  Court  shall  have  original  Juris- 
diction. In  all  the  other  Cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  Jurisdiction,  both  as 
to  Law  and  Fact,  with  such  Exceptions,  and  under  such 
regulations  as  the  Congress  shall  make. 

*  See  Amendment  XI. 


244       American  Constitutional  Law 

3.  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Jury ;  and  such  Trial  shall  be  held  in  the 
State  where  the  said  Crimes  shall  have  been  committed; 
but  when  not  committed  within  any  State,  the  Trial 
shall  be  at  such  Place  or  Places  as  the  Congress  may  by 
Law  have  directed. 

Section  3. 

1.  Treason  against  the  United  States,  shall  consist 
only  in  levying  War  against  them,  or  in  adhering  to  their 
Enemies,  giving  them  Aid  and  Comfort.  No  Person  shall 
be  convicted  of  Treason  unless  on  the  Testimony  of  two 
Witnesses  to  the  same  overt  Act,  or  on  Confession  in 
open  Court. 

2.  The  Congress  shall  have  Power  to  declare  the 
Punishment  of  Treason,  but  no  Attainder  of  Treason  shall 
work  Corruption  of  Blood,  or  Forfeiture  except  during 
the  Life  of  the  Person  attained. 


ARTICLE   IV. 

Section  i. 

I.  Full  Faith  and  Credit  shall  be  given  in  each  State 
to  the  public  Acts,  Records,  and  judicial  Proceedings  of 
every  other  State.  And  the  Congress  may  by  general 
Laws  prescribe  the  manner  in  which  such  Acts,  Records, 
and  Proceedings  shall  be  proved,  and  the  Effect  thereof. 

Section    2. 

1.  The  Citizens  of  each  State  shall  be  entitled  to  all 
Privileges  and  Immunities  of  Citizens  in  the  several  States. 

2.  A  Person  charged  in  any  State  with  Treason, 
Felony,  or  other  Crime,  who  shall  flee  from  Justice,  and 


The  Constitution  245 

be  found  in  another  State,  shall  on  Demand  of  the  execu- 
tive Authority  of  the  State  from  which  he  fled,  be  de- 
livered up  to  be  removed  to  the  State  having  Jiuisdiction 
of  the  Crime. 

3.  ^No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall,  in 
Consequence  of  any  Law  or  Regulation  therein,  be  dis- 
charged from  such  Service  or  Labour,  but  shall  be  de- 
livered up  on  Claim  of  the  Party  to  whom  such  Service 
or  Labour  may  be  due. 

Section  3. 

1.  New  States  may  be  admitted  by  the  Congress  into 
this  Union;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State;  nor  any  State 
be  formed  by  the  Junction  of  two  or  more  States,  or 
Parts  of  States,  without  the  ConsentI  of  the  Legislatures 
of  the  States  concerned  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the 
Territory  or  other  Property  belonging  to  the  United 
States;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  Prejudice  any  Claims  of  the  United 
States,  or  of  any  particular  State. 

Section  4. 

I.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Invasion;  and  on 
Application  of  the  Legislature,  or  of  the  Executive  (when 
the  Legislature  cannot  be  convened)  against  domestic 
Violence. 

'  See  Amendments  XIII.,  XIV.,  XV. 


246       American  Constitutional  Law 

ARTICLE  V. 

I.  The  Congress,  whenever  two  thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legisla- 
tures of  two  thirds  of  the  several  States,  shall  call  a 
Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part 
of  this  Constitution,  when  ratified  by  the  Legislatures  of 
three  fourths  of  the  several  States,  or  by  Conventions 
in  three  fourths  thereof,  as  the  one  or  the  other  Mode  of 
Ratification  may  be  proposed  by  the  Congress ;  Provided 
that  no  Amendment  which  may  be  made  prior  to  the 
Year  one  thousand  eight  hundred  and  eight  shall  in  any 
Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth 
Section  of  the  first  Article;  and  that  no  State,  without 
its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in 
the  Senate. 


ARTICLE  VI. 

1.  All  Debts  contracted  and  Engagements  entered 
into,  before  the  Adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution, 
as  under  the  Confederation. 

2.  This  Constitution,  and  the  Laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof;  and  all 
Treaties  made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land ;  and  the  Judges  in  every  State  shall  be 
bound  thereby,  any  Thing  in  the  Constitution  or  Laws 
of  any  State  to  the  Contrary  notwithstanding. 

3.  The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 


The  Constitution  247 

States  and  of  the  several  States,  shall  be  bound  by- 
Oath  or  Affirmation,  to  support  this  Constitution; 
but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the 
United  States. 


ARTICLE   VII. 

I.  The  Ratification  of  the  Conventions  of  nine  States, 
shall  be  sufficient  for  the  Establishment  of  this  Constitu- 
tion between  the  States  so  ratifying  the  same. 

Done  in  Convention  by  the 
Unanimous  Consent  of  the 
^States  present:the  Seventeenth 
Day  of  September  in  the  Year 
of  our  Lord  one  thousand  seven 
hundred  and  Eighty  seven  and 
of  the  Independence  of  the 
United  States  of  America  the 
Twelfth  In  Witness  whereof 
We  have  hereunto  subscribed 
our  Names, 

G°:  WASHINGTON— PrmW/. 
and  deputy  from  Virginia. 

Attest  William  Jackson  Secretary. 

'The  word,  "the,"  being  interlined  between  the  seventh  and 
eighth  Lines  of  the  first  Page,  The  Word  "Thirty"  being  partly 
written  on  an  Erazure  in  the  fifteenth  Line  of  the  first  Page,  The 
Words  "is  tried"  being  interlined  between  the  thirty-second  and 
thirty- third  Lines  of  the  first  Page  and  the  Word  "the"  being  inter- 
lined between  the  forty-third  and  forty-fourth  Lines  of  the  second 
Page. 

[Note  by  Department  of  State:  The  interlined  and  rewritten 
words  mentioned  in  the  above  explanation,  are  in  this  edition,  printed 
in  their  proper  places  in  the  text.] 


248       American  Constitutional  Law 

New  Hampshire: 
John  Langdon 
Nicholas  Oilman 

Massachusetts: 

Nathaniel  Gorham 
Rufus  King 

Connecticut: 

Wm:  Saml.  Johnson 
Roger  Sherman 

Nenu  York: 

Alexander  Hamilton 

New  Jersey: 

Wil :  Livingston 
David  Brearley 
Wm.  Paterson 
Jona:  Dayton 

Pennsylvania: 
B  Franklin 
Thomas  Mifflin 
Robt.  Morris 
Geo.  Clymer 
Thos.  Fitz  Simons 
Jared  IngersoU 
James  Wilson 
Gouv  Morris 

Delaware: 

Geo:  Read 

Gunning  Bedford  jun 
John  Dickinson 
Richard  Bassett 
.Jaco:  Broom     < 


The  Constitution  249 

Maryland: 

James  McHenry 

Dan  of  St.  Thos.  Jenifer 

Danl  Carroll 

Virginia: 

John  Blair — 
James  Madison  Jr. 

North  Carolina: 
Wm:  Blount 
Richd.  Dobbs  Spaight 
Hu  Williamson 

South  Carolina: 
J.  Rutledge 

Charles  Cotesworth  Pinckney 
Charles  Pinckney 
Pierce  Butler 

Georgia: 

William  Few 
Abr  Baldwin 

{Articles  in  Addition  to  and  Amendment  of  ike  Con- 
stitution of  the  United  States  of  America,  Proposed  by 
Congress  and  Ratified  by  the  Legislatures  of  the  several 
States,  Pursuant  to  the  Fifth  Article  of  the  Constitution.] 

(ARTICLE  I.) 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech,  or  of  the  press;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances. 


250       American  Constitutional  Law 

(ARTICLE  II.) 

A  well-regulated  Militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  Arms,  shall  not  be  infringed. 

(ARTICLE  III.) 

No  Soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  Owner,  nor,  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

(ARTICLE  IV.) 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  Warrants  shall 
issue,  but  upon  probable  cause,  supported  by  Oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

(ARTICLE  V.) 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
service  in  time  of  War  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
Criminal  Case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process 
of  law ;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation. 

(ARTICLE  VI.) 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 


The  Constitution  251 

jury  of  the  State  and  district  wherein  the  crime  shall  have 
been  committed,  which  district  shall  have  been  previously- 
ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the 
witnesses  against  him;  to  have  compulsory  process  for 
obtaining  Witnesses  in  his  favor,  and  to  have  the  as- 
sistance of  Counsel  for  his  defence. 

(ARTICLE  VII.) 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be 
otherwise  re-examined  in  any  Court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law. 

(ARTICLE  VIII.) 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

(ARTICLE  IX.) 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  ethers  re- 
tained by  the  people. 

(ARTICLE  X.) 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people. 

(ARTICLE  XI.) 

The  Judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  Citizens  of  another  State,  or  by  Citizens  or  Subjects 
of  any  Foreign  State. 


252       American  Constitutional  Law 

(ARTICLE   XII.) 

Section    i. 

The  Electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President;  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  government 
of  the  United  States,  directed  to  the  President  of  the 
Senate; — the  President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted; — The 
person  having  the  greatest  number  of  votes  for  President 
shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed ;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one 
vote;  a  quorum  for  this  purpose  shall  consist  of  a  member 
or  members  from  two  thirds  of  the  States,  and  a  majority 
of  all  the  States  shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  Presi- 
dent whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following, 
then  the  Vice-President  shall  act  as  President,  as  in  the 
case  of  the  death  or  other  constitutional  disability  of  the 


The  Constitution  253 

President.  The  person  having  the  greatest  number  of 
votes  as  Vice-President  shall  be  the  Vice-President,  if 
such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed,  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the  list,  the  Senate 
shall  choose  the  Vice-President ;  a  quorum  for  the  purpose 
shall  consist  of  two  thirds  of  the  whole  number  of  Sena- 
tors, a  majority  of  the  whole  number  shall  be  necessary 
to  a  choice.  But  no  person  constitutionally  ineligible  to 
the  office  of  President  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States. 

(ARTICLE  XIII.) 

Section  i. 

Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

Section  2. 

Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

(ARTICLE  XIV.) 

Section  i. 

All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor 


254       American  Constitutional  Law 

deny  to  any  person  within  its  jurisdiction  the    equal 
protection  of  the  laws. 

Section  2. 

Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  niimbers, 
counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  But  when  the  right  to  vote 
at  any  election  for  the  choice  of  electors  for  President  and 
Vice-President  of  the  United  States,  Representatives  in 
Congress,  the  Executive  and  Judicial  officers  of  a  State, 
or  the  members  of  the  Legislatiire  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States,  or  in 
any  way  abridged,  except  for  participation  in  rebellion, 
or  other  crime,  the  basis  of  representation  therein  shall 
be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State. 

Section  3. 

No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or 
hold  any  ofhce,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  State  Legislature, 
or  as  an  executive  or  judicial  officer  of  any  State,  to 
support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same, 
or  given  aid  or  comfort  to  the  enemies  thereof.  But 
Congress  may  by  a  vote  of  two  thirds  of  each  House, 
remove  such  disability. 


The  Constitution  255 

Section  4. 

The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing 
insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrec- 
tion or  rebellion  against  the  United  States,  or  any  claim 
for  the  loss  or  emancipation  of  any  slave;  but  all  such 
debts,  obligations  and  claims  shall  be  held  illegal  and 
void. 

Section  5. 

The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

(ARTICLE  XV.) 

Section  i. 

The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

Section  2. 

The  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

(ARTICLE  XVI.) 

The  Congress  shall  have  power  to  lay  and  collect  taxes 
on  incomes  from  whatever  source  derived,  without 
apportionment  among  the  several  States  and  without 
regard  to  any  census  or  enumeration. 


256       American  Constitutional  Law 

(ARTICLE  XVII.) 

Section  i. 

The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  elected  by  the  people 
thereof,  for  six  years;  and  each  Senator  shall  have  one 
vote.  The  Electors  in  each  state  shall  have  the  qualifica- 
tions requisite  for  Electors  of  the  most  numerous  branch 
of  the  State  Legislature. 

Section  2. 

When  vacancies  happen  in  the  representation  of  any 
State  in  the  Senate,  the  executive  authority  of  such  State 
shall  issue  writs  of  election  to  fill  such  vacancies:  Pro- 
vided, That  the  Legislature  of  any  State  may  empower 
the  executive  thereof  to  make  temporary  appointments 
until  the  people  fill  the  vacancies  by  election  as  the 
Legislature  may  direct. 

Section   3. 

This  amendment  shall  not  be  construed  as  to  affect 
the  election  or  term  of  any  Senator  chosen  before  it 
becomes  valid  as  part  of  the  Constitution. 


RATIFICATIONS 

OF 

THE  CONSTITUTION. 

The  Constitution  was  adopted  by  a  Convention  of 
the  States  September  17,  1787,  and  was  subsequently 
ratified  by  the  several  States,  in  the  following  order,  viz. : 

Delaware,  December  7,  1787. 


The  Constitution  257 

Pennsylvania,  December  12,  1787. 

New  Jersey,  December  i8,  1787. 

Georgia,  January  2,  1788. 

Connecticut,  January  9,  1788. 

Massachusetts,  February  6,  1788. 

Maryland,  April  28,  1788. 

South  CaroHna,  May  23,  1788. 

New  Hampshire,  June  21,  1788. 

Virginia,  June  26,  1788. 

New  York,  July  26,  1788. 

North  Carolina,  November  21,  1789. 

Rhode  Island,  May  29,  1790. 

The  State  of  Vermont,  by  convention,  ratified  the 
Constitution  on  the  loth  of  January,  1791,  and  was,  by 
an  act  of  Congress  of  the  i8th  of  February,  1791,  "re- 
ceived and  admitted  into  this  Union  as  a  new  and  entire 
member  of  the  United  States  of  America." 


RATIFICATIONS    OF   THE   AMENDMENTS    TO 
THE  CONSTITUTION. 

The  first  ten  articles  of  amendment  (with  two  otherv^ 
which  were  not  ratified  by  the  requisite  nimiber  of 
States)  were  submitted  to  the  several  State  Legislatures 
by  a  resolution  of  Congress  which  passed  on  the  25th 
of  September,  1789,  at  the  first  session  of  the  First  Con- 
gress, and  were  ratified  by  the  Legislatures  of  the  follow- 
ing States: 

New  Jersey,  November  20,  1789. 

Maryland,  December  19,  1789. 

North  Carolina,  December  22,  1789. 

South  Carolina,  January  19,  1790. 

New  Hampshire,  January  25,  1790. 

Delaware,  January  28,  1790. 
17 


258       American  Constitutional  Law 

Pennsylvania,  March  10,  1790. 

New  York,  March  27,  1790. 

Rhode  Island,  June  15,  1790. 

Vermont,  November  3,  1791. 

Virginia,  December  15,  1791. 

The  acts  of  the  Legislatures  of  the  States  ratifying 
these  amendments  were  transmitted  by  the  governors 
to  the  President,  and  by  him  communicated  to  Congress. 
The  Legislatures  of  Massachusetts,  Connecticut,  and 
Georgia,  do  not  appear  by  the  record  to  have  ratified 
them. 

The  eleventh  article  was  submitted  to  the  Legislatures 
of  the  several  States  by  a  resolution  of  Congress  passed 
on  the  5th  of  March,  1794,  at  the  first  session  of  the  Third 
Congress;  and  on  the  8th  of  January,  1798,  at  the  second 
session  of  the  Fifth  Congress,  it  was  declared  by  the 
President,  in  a  message  to  the  two  Houses  of  Congress, 
to  have  been  adopted  by  the  Legislatures  of  three  fourths 
of  the  States,  there  being  at  that  time  sixteen  States  in 
the  Union. 

The  twelfth  article  was  submitted  to  the  Legislatures 
of  the  several  States,  there  being  then  seventeen  States, 
by  a  resolution  of  Congress  passed  on  the  12th  of  Decem- 
ber, 1803,  at  the  first  session  of  the  Eighth  Congress; 
and  was  ratified  by  the  Legislatures  of  three  fourths  of 
the  States,  in  1804,  according  to  a  proclamation  of 
the  Secretary  of  State  dated  the  25th  of  Septem^ber, 
1804. 

The  thirteenth  article  was  submitted  to  the  Legisla- 
tures of  the  several  States,  there  being  then  thirty-six 
States,  by  a  resolution  of  Congress  passed  on  the  ist 
of  February,  1865,  at  the  second  session  of  the  Thirty- 
eighth  Congress,  and  was  ratified,  according  to  a  pro- 
clamation of  the  Secretary  of  State  dated  December  18, 
1865,  by  the  Legislatures  of  the  following  States: 


The  Constitution  259 

Illinois,  February  i,  1865. 
Rhode  Island,  February  2,  1865. 
Michigan,  February  2,  1865. 
Maryland,  February  3,  1865, 
New  York,  February  3,  1865. 
West  Virginia,  February  3,  1865. 
Maine,  February  7,  1865. 
Kansas,  February  7,  1865. 
Massachusetts,  February  8,  1865, 
Pennsylvania,  February  8,  1865. 
Virginia,  February  9,  1865. 
Ohio,  February  10,  1865. 
Missouri,  February  10,  1865. 
Indiana,  February  16,  1865. 
Nevada,  February  16,  1865. 
Louisiana,  February  17,  1865. 
Minnesota,  February  23,  1865. 
Wisconsin,  March  i,  1865. 
Vermont,  March  9,  1865. 
Tennessee,  April  7,  1865. 
Arkansas,  April  20,  1865. 
Connecticut,  May  5,  1865. 
New  Hampshire,  July  i,  1865. 
South  Carolina,  November  13,  1865. 
Alabama,  December  2,  1865. 
North  Carolina,  December  4,  1865. 
Georgia,  December  9,  1865. 

The  following  States  not  enumerated  in  the  proclama- 
tion of  the  Secretary  of  State  also  ratified  this  amendment : 
Oregon,  December  11,  1865. 
California,  December  20,  1865. 
Florida,  December  28,  1865. 
New  Jersey,  January  23,  1866. 
Iowa,  January  24,  1866. 
Texas,  February  18,  1870. 


26o       American  Constitutional  Law 

The  fourteenth  article  was  submitted  to  the  Legis- 
latures of  the  several  States,  there  being  then  thirty- 
seven  States,  by  a  resolution  of  Congress  passed  on  the 
1 6th  of  June,  1866,  at  the  first  session  of  the  Thirty- 
ninth  Congress;  and  was  ratified,  according  to  proclama- 
tion of  the  Secretary  of  State  dated  July  28,  1868,  by 
the  Legislatures  of  the  following  States : 

Connecticut,  June  30,  1866. 

New  Hampshire,  July  7,  1866. 

Tennessee,  July  19,  1866. 

^New  Jersey,  September  11,  1866. 

^Oregon,  September  19,  1866. 

Vermont,  November  9,  1866. 

New  York,  January  10,  1867. 

^Ohio,  January  11,  1867. 

Illinois,  January  15,  1867. 

West  Virginia,  January  16,  1867. 

Kansas,  January  18,  1867. 

Maine,  January  19,  1867. 

Nevada,  January  22,  1867. 

Missoiiri,  January  26,  1867. 

Indiana,  January  29,  1867. 

Minnesota,  February  i,  1867. 

Rhode  Island,  February  7,  1867. 

Wisconsin,  February  13,  1867. 

Pennsylvania,  February  13,  1867. 

Michigan,  February  15,  1867. 

Massachusetts,  March  20,  1867. 

Nebraska,  June  15,  1867. 

Iowa,  April  3,  1868. 

Arkansas,  April  6,  il 


'  New  Jersey  withdrew  her  consent  to  the  ratification  on  March 
27,  1868. 

^  Oregon  withdrew  her  consent  to  the  ratification  October  15,  1868. 
3  Ohio  withdrew  her  consent  to  the  ratification  in  January,  1868. 


The  Constitution  261 

Florida,  June  9,  1868. 

^Nprth  Carolina,  July  4,  1868. 

Louisiana,  July  9,  1868. 

^South  Carolina,  July  9,  1868. 

Alabama,  July  13,  1868. 

^Georgia,  July  21,  1868. 

Mississippi,  January  17,  1870. 

Texas,  February  18,  1870. 

^  Virginia  ratified  this  amendment  on  the  8th  of 
October,  1869,  subsequent  to  the  date  of  the  proclama- 
tion of  the  Secretary  of  State.  Delaware,  Mar34and,  and 
Kentucky  rejected  the  amendment. 

The  fifteenth  article  v/as  submitted  to  the  Legislatures 
of  the  several  States,  there  being  then  thirty-seven 
States,  by  a  resolution  of  Congress  passed  on  the  27th  of 
February,  1869,  at  the  first  session  of  the  Forty-first 
Congress;  and  was  ratified,  according  to  a  proclamation 
of  the  Secretary  of  State  dated  March  30,  1870,  by  the 
Legislatures  of  the  following  States: 

Nevada,  March  i,  1869. 

West  Virginia,  March  3,  1869. 

North  Carolina,  March  5,  1869. 

Louisiana,  March  5,  1869. 

Illinois,  March  5,  1869. 

Michigan,  March  8,  1869. 

Wisconsin,  March  9,  1869. 

Massachusetts,  March  12,  1869. 

Maine,  March  12,  1869. 

South  Carolina,  March  16,  1869. 

Pennsylvania,  March  26,  1869. 

Arkansas,  March  30,  1869, 

'New  York,  April  14,  1869. 

*  North  Carolina,  South  Carolina,  Georgia,  and  Virginia  had 
previously  rejected  the  amendment. 

'  New  York  withdrew  her  consent  to  the  ratification  January  5,1870. 


262       American  Constitutional  Law 

Indiana,  May  14,  1869. 

Connecticut,  May  19,  1869. 

Florida,  June  15,  1869. 

New  Hampshire,  July  7,  1869. 

Virginia,  October  8,  1869. 

Vermont,  October  21,  1869. 

Alabama,  November  24,  1869. 

Missouri,  January  10,  1870. 

Mississippi,  January  17,  1870. 

Rhode  Island,  January   18,  1870. 

Kansas,  January  19,  1870. 

^Ohio,  January  27,  1870. 

Georgia,  February  2,  1870. 

Iowa,  February  3,  1870. 

Nebraska,  February  17,  1870. 

Texas,  February  18,  1870. 

Minnesota,  February  19,  1870. 

^  The  State  of  New  Jersey  ratified  this  amendment 
on  the  21st  of  February,  1871,  subsequent  to  the  date  of 
the  proclamation  of  the  Secretary  of  State. 

The  States  of  California,  Delaware,  Kentuck}'',  Mary- 
land, Oregon,  and  Tennessee  rejected  this  amendment. 

The  sixteenth  article  was  passed  by  a  resolution  of 
Congress  July  12,  1909;  proclaimed  by  the  Secretary  of 
State,  Philander  C.  Knox,  as  part  of  the  Constitution 
February  25,  1913,  there  then  being  forty-eight  States. 
The  article  was  ratified  by  the  States  as  follows : 

Alabama,  August  17,  1909. 

Kentucky,  February  9,  1910. 

South  Carolina,  February  19,  1910. 

Illinois,  March  i,  1910. 

Mississippi,  March  7,  1910. 

Oklahoma,  March  14,  1910. 

^  Ohio  had  previously  rejected  the  amendment  May  4,  1869. 
^  New  Jersey  had  previously  rejected  the  amendment. 


The  Constitution  263 

Maryland,  April  8,  19 10. 

Georgia,  August  3,  1910. 

Texas,  August  17,  19 10. 

Ohio,  January  19,  191 1. 

Idaho,  January  20,  191 1. 

Oregon,  January  23,  191 1. 

Washington,  January  26,  191 1. 

Montana,  California,  January  31,  1911. 

Indiana,  February  6,  191 1. 

Nevada,  February  8,  191 1. 

Nebraska,  North  Carolina,  February  11,  191 1. 

Colorado,  February  20,  191 1. 

North  Dakota,  February  21,  191 1. 

Michigan,  February  23,  191 1. 

Iowa,  February  27,  191 1. 

Missouri,  March  16,  191 1. 

Maine,  March  31,  191 1. 

Tennessee,  April  7,  191 1. 

Arkansas,  April  22,  191 1. 

Wisconsin,  May  26,  191 1. 

New  York,  July  12,  191 1. 

South  Dakota,  February  3,  191 2. 

Arizona,  April  9,  1912. 

Minnesota,  June  11,  191 2. 

Delaware,  Wyoming,  February  3,  1913. 

New  Jersey,  New  Mexico,  February  5,  1913. 

The  States  of  Rhode  Island,  New  Hampshire,  Ken- 
tucky and  Utah  rejected  this  amendment. 

The  seventeenth  article  was  passed  by  a  resolution  of 
Congress  June  12,  191 1;  proclaimed  by  the  Secretary  of 
State,  William  J.  Bryan,  as  part  of  the  Constitution 
May  31,  1913,  there  then  being  forty-eight  States.  The 
article  was  ratified  by  the  States  as  follows: 

Massachusetts,  May  22,  191 2. 

Arizona,  June  3,  1912. 


264       American  Constitutional  Law 

Minnesota,  June  10,  191 2. 

New  York,  January  13,  1913. 

Kansas,  January  17,  191 3. 

Oregon,  January  23,  191 3. 

North  Carolina,  January  25,  1913. 

Michigan,  California,  January  28,  1913. 

Idaho,  January  31,  1913. 

West  Virginia,  February  4,  191 3. 

Nebraska,  February  5,  1913. 

Iowa,  February  6,  1913. 

Washington,  Montana,  Texas,  February  7,  1913. 

Wyoming,  February  11,  191 3. 

Illinois,  Colorado,  February  13,  1913. 

North  Dakota,  February  18,  1913. 

Nevada,  Vermont,  February  19,  191 3. 

Maine,  February  20,  1913. 

New  Hampshire,  February  21,  1913. 

Oklahoma,  February  24,  1913. 

Ohio,  February  25,  1913. 

South  Dakota,  February  27,  1913. 

Indiana,  March  6,  19 13. 

Missouri,  March  7,  1913. 

Tennessee,  April  i,  191 3. 

Arkansas,  April  14,  1913. 

Pennsylvania,  Connecticut,  April  15,  191 3. 

Wisconsin,  May  9,  1913. 


CASES  CITED 


Addystone  (The),  Pipe  &  Steel 
Co.  V.  U.  S.,  175  U.  S.,  211, 

(87) 
American    Insurance    Company 

V.  Canter,  i  Peters,  511,  (15, 

47,  127,  159,  193) 
Ames  V.  Kansas,  11 1  U.  S.,  449, 

(139) 
Arndt  v.  Griggs,  134  U.  S.,  316, 
(96) 


B 


Baldwin  v.  Hale,  i  Wallace,  223, 

(37,  38) 
Bank  of  Commerce  v.  New  York 

City,   2   Block,   620,  (51,  52, 

122) 
Barbier  v.  Connolly,  113  U.  S., 

27,  (207,  209) 
Barron  v.  Baltimore,  7  Peters, 

243,  (II,  32,  47,  156,  161) 
Bartemeyer  v.  Iowa,  18  Wallace, 

129, (98) 
Battle  V.  U.  S.,  209  U,  S.,  36,  (43) 
Beck  V.  Perkins,  139  U.  S.,  628, 

(137) 
Bedford,   v.  U.   S.,   192   U.   S., 

217,  (100) 
Beef  Trust,  Swift  and  Co.  v.  U. 

S.,  196  U.  S.,  375,  (84) 
Beer  Co.  v.  Massachusetts,  97 

U.  S.,  25,  (92) 
Blake  v.  McClung,   172  U.  S., 

239,  (150,  151,  198) 
B6rs  V.  Preston,  m  U.  S.,  252, 
(120,  137) 


Boyd  V.  Alabama,  94  U.  S.  645, 

(92) 
Boyd  V.  U.  S.,  116  U.  S.,  616, 

(203,  225) 
Brewer  Brick  Co.  v.  Brewer,  62 

Maine,  62,  (60) 
Brig  Wilson  v.  U.  S.,  I  Brocken- 

brough,  437,  (63) 
Brimmer  v.  Rebman,  138  U.  S., 

78,  (68,  79) 
Briscoe  v.   Bank  of  Kentucky, 

II  Peters,  257,  (41) 
Brown  v.  Houston,   114  U.  S., 

622,  (80) 
Brown  ».  Maryland,  12  Wheaton, 

419,  (66,  75,  76) 
Brown  ».  U.  S.,  8  Cranch,  no, 

(47) 
Brown  v.   Walker,    161    U.    S., 

591,  (162,  226) 
Bucher  v.  Cheshire,  R.  R.  Co., 

125  U.  S.,  555,  (145) 
Buckner  v.  Finley,  2  Peters,  590, 

(148,  149) 
Burgess  v.  Seligman,  107  U.  S., 

20,  (145) 
Buttfield     V.     Stranahan,      192 

U.  S.,  470,  (88) 


Calder  v.  Bull,  3  Dallas,  386,  (32, 

224) 
Callan   v.    Wilson,    127   U.    S., 

540,  (160) 
Capitol  Traction  Co.  v.  Hof,  174 

U.  S.,  I,  (210) 
Central   Bridge   Corporation  v. 

City  of  Lowell,  4  Gray  (Mass.), 

474,  (99) 


265 


266 


Cases  Cited 


Chicago,  etc.,Ry.Co.z;.Wellman, 

143  U.  S.,  339,  (186) 
Chisholm  v.  Georgia,  2  Dallas, 

419,  (114,  141  [note]) 
Cincinnati,     Wilmington,     etc., 

R.  R.  Co.  V.  Commissioners, 

1  Ohio  St.,  88,  (169) 

Civil  Rights  Cases,  109  U.  S., 
3,  (17,  24,  94,  217,  218,  220) 

Clark  Distilling  Co.  v.  Am.  Ex. 
Co.,   and   State   of   W.    Va., 

(64) 
Clark  Distilling  Co.  v.  W.  Md. 

R.R.  Co.,  (64) 
Coe  V.  Errol,  116  U.  S.,  525,  (73) 
Cohens  v.  Virginia,  6  Wheaton, 

382,  (13,  119,  121,  138,  162) 
Collector     (The)     v.     Day,     11 

Wallace,  113,  (54,  55) 
Commissioners  of   Immigration 

V.   North  German  Lloyd,   92 

U.  S.,  259,  (32) 
Commonweath    v.    McCloskey, 

2  Rawle  (Pa.),  374,  (i36) 
Cook    V.     Marshall     Company, 

196  U.  S.,  261,  (10) 

Corfield  v.  Coryell,  4  Washing- 
ton C.  C,  371,  (200,  213) 

Cooley  V.  Board  of  Port  Wardens 
of  the  Port  of  Philadelphia, 
12  Howard,  299,  (74) 

Corporation  Tax  Cases,  220 
U.S.,  611,  (62) 

Cotting  V.  Kansas  City  Stock 
Yards  Co.,  183  U.  S.,  79, 
(198) 

County  of  Mobile  v.  Kimball, 
102  U.  S.,  691,  (32) 

Crandall  v.  Nevada,  6  Wallace, 
36,  (214) 

Crutcher  i;.  Kentucky,  141  U.  S., 
A7,  (78,  79) 

Cunningham  v.  Macon  &  Bruns- 
wick R.  R.  Co.,  109  U.  S., 
446,  (141) 

Cunnius  v.  Reading  School  Dis- 
trict, 198  U.  S.,  458,  (97) 


D 


Dalby  v.  Wolf,    14  Iowa,   228, 
(31) 


Dale  Tile  Mfg.  Co.  v.  Hyatt,  125 

U.  S.,  46,  (44) 
Danbury  Hatters'  Case,  Loewe  v. 

Lawler,  208  U.  S.,  274,  (85) 
Daniel  Ball  (The),   10  Wallace, 

557,  (71) 
Darrington  v.  Bank  of  Alabama, 

13  Howard,  12,  (41) 
Davis  V.  Beason,  133  U.  S.,  333, 

(195) 
Davis  V.  Packard,  7  Peters,  276, 

(120) 
Dent  V.  West  Virginia,  129  U.  S., 

114, (207) 
Dooley  v.  U.  S.,  183  U.  S.,  151, 

(49) 
Dorr  V.  U.  S.,    195   U.  S.,    138, 

(49,  163) 
Douglas  V.  Kentucky,  168  U.  S., 

488,  (92,  93) 
Downes  v.  Bid  well,   182   U.  S., 

244,  (14,  49,  50,  160,  162,  163, 

201) 
Drake  v.  U.  S.,  ex  rel  Bates,  30 

App.   D.  C,  312;  36  Wash. 

Law  Rep.,  140,  (in) 

E 

East  Hartford  v.  Hartford  Bridge 
Co.,   ID  Howard,  511,   (93) 

Escanaba  Company  v.  Chicago, 
107  U.  S.,  678,  (74) 

Ex  parte  Boyer,  109  U.  S.,  629, 

(^38)  _ 

Ex   parte   Garland,   4   Wallace, 

333,  (107) 
Ex  parte  Griffiths,  118  Indiana, 

83,  (136,  222) 
Ex  parte  MiUigan,  4  Wallace,  2, 

(198) 
Ex  parte  Reggel,  114  U.  S.,  642, 

(17,  151,  152) 
Ex  parte  Siebold,  100  U.  S.,  37, 

(138,  156,  218) 
Ex  parte  Wall,  107  U.  S.,  265, 

(205) 
Ex  parte  Watkins,  7  Peters,  568, 

(143) 
Ex  parte  Yarbrough,  no  U.  S., 
651,     (157,     177,    215,     216, 
223) 


Cases  Cited 


267 


Field  V.  Clark,  143  U,  S.,  649, 

(25,  169,  190) 
Fish   V.    Jefferson    Police   Jury, 

116  U.  S.,  131,  (91) 
Florida    Central   R.    R.    Co.    v. 

Reynolds,  183  U.  S.,  476,  (60) 
Fong  Yue  Ting  i;.  U.  S.,  149  U. 

S.,  698,  (156) 
Foster  v.  Kansas,  112  U.  S.,  201, 

(98) 
Fox  V.  Ohio,  5  Howard,  410,  (42) 
Franklin  Needle  Co.  v.  Franklin, 

65  N.  H.,  177,  (60) 
Frees  v.  Ford,  6  New  York,  176, 

(186) 
French  v.  Barber  Asphalt  Paving 

Co.,  181  U.  S.,  324,  (62) 
Ft.  Leavenworth  R.  R.  Co.  v. 

Loewe,  114  U.  S.  525,  (48) 


Gaines  v.  Fuentes,  92  U.  S.,  10, 

(143) 
Garfield  v.  U.  S.,  ex  rel.  Frost,  30 

App.   D.   C,   165;  35  Wash. 

Law  Rep.,  771,  (in) 
Gelpoke  V.  City  of  Dubuque,  i 

Wallace,  175,  (144) 
Georgia  R.  R.  and  Banking  Co. 

V.  Smith,  128  U.  S.,  174,  (93) 
Georgia  v.  Stanton,  6  Wallace, 

57,  (107) 
Gibbons  v.  Ogden,  9  Wheaton,  i, 

(32,  67,  68,  184) 
Gilman  v.  Philadelphia,  3  Wal- 
lace, 713,  (32) 
Green  v.  Neal's  Lessee,  6  Peters, 

291,  (144) 
Griffin  V.  U.  S.,  ex  rel.  Le  Cuyer, 

30  App.  D.  C.,  291;  36  Wash. 

Law  Rep.,  103,  (in) 
Guinn  and  Beal  v.   U.   S.,  238 

U.  S.,  347,  (223) 
Gunn  V.  Barry,  15  Wallace,  610, 

(94) 

H 

Hanley  v.  Donaghue,  116  U.  S., 
I,  (147,  148) 


Hanley  v,  Kansas  City  Southern 
Railroad  Co.,  187  U.  S.,  617, 
(70,  88) 

Hans  V.  Louisiana,  134  U.  S.,  i, 

(141) 
Harman  v.  Chicago,  147  U.  S., 

396,  (75) 
Harris   v.    People,    128    Illinois, 

585,  (225) 
Hartell  v.  Tilghman,  99  U.  S., 
^  558  (44) 
Hawaii  v.  Mankichi,  190  U.  S., 

197,  (94  ,163) 
Hayburn's  Case,  2  Dallas,  409, 

note,  (222) 
Henderson  et  al.  Mayor  of  the 

City  of  New  York  et  al.  (32) 
Henderson    v.    Mayor    of    New 

York,  92  U.  S.,  259,  (68) 
Hepburn   v.    EUzey,    2    Cranch, 

445.  (47,  126) 
Hepburn  v.  Griswold,  8  Wallace, 

603,  (39) 
Herdic  v.  Roessler,   109  N.  Y., 

.127,  (44) 
Hilland   Co.  Lmtd.   v.   Hoover, 

220  U.  S.,329,  (44) 
Holden  v.  Hardy,  169  U.  S.,  366, 

(207) 
HoUinger  v.   Davis,    146  U.   S., 

314, (225) 
Hooe   V.   Jamieson,    166   U.    S., 

395.  (142) 
Hope  V.  U.  S.,  227  U.  S.,  308, 

(88) 
Hull  V.  De  Cuir,  95  U.  S.,  485, 

(32) 
Hurtado  v.  California,  no  U.  S., 

514,  (205,  220) 

I 

Inman  S.  S.  Co.,  v.  Tinker,  94 

U.  S.,  238,  (81) 
In  re  Debs,  158  U.  S.,  564,  (87) 
In  re  Neagle,  135  U.  S.,  i,  (85, 

106,  116) 
In  re  Rapier,  143  U.  S.,  no,  (43) 


Juilliard  v.  Greenman,  no  U.  8., 
421.  (38,  39,  95) 


268 


Cases  Cited 


Kelly  V.  Pittsburgh,  104  U.  S., 

78,  (62) 
Kendall  v.  U.  S.,  12  Peters,  524, 

(107) 
Kentucky  Railroad  Tax  Cases, 

115  U.  S.,  321,  (62) 
Kidd  V.  Pearson,  128  U.  S.,  I, 

(73) 
Kimmish  v.  Ball,  129  U.  S.,  217, 

(ID) 

Kingman  v.  City  of  Brockton, 

153  Mass.,  255,  (61) 
Kirtland  v.  Hotchkiss,  100  U.  S., 

491,  (53,  54)       „^  „ 
Knox  V.  Lee,  12  Wallace,  554, 

(40) 
Kohl  V.  U.  S.,  91   U.  S.,  367, 

(100) 
Kring  V.   Missouri,    107   U.   S., 

221,  (224) 


Lamar  ex  v.  Browne  et  al.,  92 

U.  S.,  187,  (47) 
Lascelles  v.  Georgia,  148  U.  S., 

537,  (152,  153.  154) 
Legal  Tender  Cases,  12  Wallace, 

457,  (156) 
Leisy  v.  Hardin,  135  U.  S.,  100, 

(68,  79,  81) 
License  Cases  (The),  5  Howard, 

504,  (10,  32,  97) 
Loan    Association    v.    Topeka, 

20  Wallace,  655,  (52,  61) 
Lockner  v.  New  York,  198  U.  S., 

45.  (198,  209) 
Lord  V.  S.  S.  Co.,  102  U.  S.,  541, 

(88) 
Lottery  Cases,   188  U.  S.,  321, 

(83) 
L.  S.  &  M.  S.  Railway  Co,  v. 

Ohio,  173  U.  S.,  (68,  79) 
Luria  V.  U.  S.,  231  U.  vS.,  9,  (221) 
Luther  v.  Borden,  7  Howard,  i, 

(128,  131,   154,  155) 

M 
Marbury  v.  Madison,  i  Cranch, 


177,  (16,  18,  24,  64,  107,  119, 
125,  129,  131,  135,  143  [note], 
176  [note],  185) 

Martin  v.  Hunter's  Lessee,  I 
Wheaton,  304,  (4,  125,  143, 
188) 

Mattingly  v.  District  of  Colum- 
bia, 97  U.  S.,  687,  (97) 

Mattox  V.  U.  S.,  156  U.  S.,  237, 
(226) 

Maxwell  v.  Dow,  176  U.  S., 
606, (220) 

Mayor  (The)  etc.,  of  the  City  of 
New  York  v.  Miln,  1 1  Peters, 
102,  (32) 

McCrackin  v.  Hayward,  2  How- 
ard, 608,  (89,  94) 

McCulloch  V.  Maryland,  4  Whea- 
ton, 316,  (3,  6,  7,  9,  10,  19, 
26,  31,  34.  38,  51,  52,  53,  54, 
66,  156,  187) 

McElmayle  v.  Cohen,  13  Peters, 
312,  (147) 

Metropolitan  R.  R.  Co.  v.  Dis- 
trict of  Columbia,  132  U.  S., 

I,  (48) 

Minor  v.  Happersett,  21  Wallace, 
162,  (155,  215) 

Mississippi  v.  Johnson,  4  Wal- 
lace, 475,  (107,  no,  in) 

Missouri  Pacific  Ry.  v.  Nebraska, 
164  U.  S.,  403,  (95) 

Mitchell  V.  Clark,  no  U.  S.,  633, 

(94,  95) 
Moore  v.  Houston,  3  S.  and  R. 

(Pa.),  179,  (36) 
Morgan  S.  S.  Co.  v.  La.  Board  of 

Health,   nS  U.  S.,  455,  (68, 

79) 
Moriey  v.  L.  S.  &  W.  S.  R.  R., 

146  U.  S.,  162,  (93) 
Mormon  Church  v.  U.  S.,   136 

U.  S.,  I,  (47) 
Mugler  V.   Kansas,    123   U.   S., 

623,  (98,  209) 
Munn  V.  Illinois,  94  U.  S.,  113, 

(209) 
Murray  v.  Charleston,  96  U.  S., 

432,  (90) 
Murray's  Lessee  v.  The  Hoboken 
Land  and  Improvement  Co., 
18  Howard,  272,  (205) 


Cases  Cited 


269 


N 


National  Bank  v.  County  of 
Yankton,  loi  U.  S.,  129,  (159, 
160) 

Neal  V,  Delaware,  103  U.  S.,  170, 
(223) 

New  Orleans  Gas  Co.  v.  Louisi- 
ana Light  Co.,  115  U.  S., 
650,  (93) 

Nishimura  Ekin  v.  U.  S.,  142 
U.  S.,  651,  (221) 

Northern  Securities  Co.  v.  U.  S., 
193  U.  S.,  197,  (84) 

Norton  v.  Shelby  County,  Ii8 
U.  S.,  425,  (188) 


O 


Ogden  V.  Saunders,  12  Wheaton, 

332,  (188) 
Ohio     (The)     and     Mississippi 

R.  R.  Co.  V.  Wheeler,  i  Black, 

286,  (142) 
Osbom  V.  Bank  of  the  U.  S.,  9 

Wheaton,  738,  (136,  137) 


Packet  Co.  v.  Keolaik,  95  U.  S., 

80,  (81) 
Pana  v.  Bowler,  107  U.  S.,  529, 

(144) 
Parker  v.  Davis,  12  Wallace,  79, 

(39) 

Passenger  (The)  Cases,  7  How- 
ard, 283,  (81) 

Patterson  v.  Kentucky,  97  U.  S., 
501,  (44) 

Paul  V.  Virginia,  8  Wallace,  168, 
(71,  149,  198,  213) 

Pembina  Mining  Co.  v.  Pennsyl- 
vania, 125  U.  S.,  181,  (207) 

Pennoyer  v.  Neflf,  95  U.  S.,  714, 
(96,  151) 

Pennsylvania  College  Cases, 
(Washington  and  Jefferson 
Colleges),    13    Wallace,    190, 

(91) 
Pensacola  Telegraph  Co.  v.  West- 
ern  Union   Telegraph  Co.,  96 
U.  8.,  I,  (32,  67,  70) 


People  V.  Ruggles,  8  Johns  (N.  Y.) , 

290,  (196) 
Pfeiffer  v.  Board  of  Education, 

77  N.  W.  Rep.,  250,  (196,  203) 
Philadelphia  and  Southern  S.  S. 

Co.  V.  Pa.,   122   U.   S.,  325, 

(59) 
Pierce  v.  Drew,  136  Mass.,  75, 

(100) 
Pollock   V.  Farmer's  Loan  and 

Trust  Co.,  158  U.S.,  601,  (190) 
P.  R.  Co.  V.  Pa.,  15  Wallace,  300, 

(52,  53) 
Presser   v.    Illinois,    116   U.    S., 

252,  (220) 
Prize  (The)  Cases,  2  Black,  635, 

(46) 
Pullman  Car   Co.  64  Fed.  Re- 
porter, 724,  (85) 
Pumpelly  v.  Green  Bay  Co.  13 

Wallace,  166,  (99) 


R 


Railroad  Co.  v.  Huson,  95  U.  S., 

465.  (79,  81) 
Railroad  Co.  v.  Tennessee,   loi 

U.  S.,  337,  (141) 
Rasmussen  v.  U.  S.,  197  U.  S., 

(49,  163) 
Rex  V.  Dawson,  5  State  Trials, 

(45) 

Reynolds  v.  U.  S.,  98  U.  S.,  145, 
(195,  203) 

Rhodes  v.  Iowa,  170  U.  S.,  412, 
(81) 

Riggs  V.  Johnson  County,  6  Wal- 
lace, i66,  (143) 

Robbins  v.  Shelby  County  Tax- 
ing District,  120  U.  S.,  489, 
(78) 

Robertson  v.  Baldwin,  165  U.  S., 
275,  (204) 

Robertson  v.  Cease,  97  U.  S.,  646, 
(118) 

Rogers  v.  Alabama,  192  U.  S., 
226,  (17) 


Salt  Co.  V.  E.  Saginaw,  13  Wal- 
lace, 373,  (91) 


270 


Cases  Cited 


Sands  v.  Manistee  River  Im- 
provement   Co.,    123    U.    S., 

238,  (75.  157) 
Savings    and    Loan    Society    v. 
Multnomah  County,  169  U.  S., 

421,  (54) 
Schellenberger  v.  Pa.,  171  U.  S., 

I,  (68,  81) 
Scott  V.  Sandford,   19  Howard, 

393,  (58) 
Secretary    (The)    v.    McGarra- 

han,  9  Wallace,  298,  (189) 
Security  Mutual  Life  Insurance 

Co.  V,  Prewitt,  202  U.  S.,  246, 

(143) 

Shreveport  (The)  Case  (Hous- 
ton East  and  West  Texas 
Railway  Co.  v.  U.  S. ;  Texas 
and  Pacific  Railway  Co.  v. 
U.  S.),  234  U.  S.,  342,  (88) 

Sinnot  v.  Davenport,  22  How- 
ard, 227  (32) 

Slaughter  House  Cases,  16  Wal- 
lace, 77,  (150,  156,  200,  212, 
214,  215) 

Smith  V.  Alabama,    124  U.   S., 

465,  (145) 
South  Carolina f.  U.  S.,  199  U.  S., 

437,  (62) 
South  Dakota  v.  North  Dakota, 

192  U.  S.,  286,  (139) 
Southern   Pacific   Railroad    Co. 

V.  California,  118  U.  S.,  109, 

(137) 
Spaulding  v.   Vilas,    161   U.   S., 

483,  (107) 
Spring  Valley  Water  Works  v. 

Schottler,  no  U.  S.,  347,  (209) 
Sproule  V.  Fredericks,  69  Miss., 

898,  (3) 
Stanley  v.  Schwalby,  162  U.  S., 

255,  (138) 

State  ex  rel.  v.  Simons,  32  Minn., 
540,  (136) 

State  ex  rel.  v.  Stone,  120  Mis- 
souri, 428,  (in,  131,  189) 

State  ex  rel.  Weiss  v.  District 
Board,  76  Wis.,  177,  (196) 

Steamboat  (The)  Magnolia,  20 
Howard,  296,  (137) 

Stone  V.  City  of  Charleston,  114 
Mass.,  214,  (32) 


Strander  v.  West  Virginia,   100 

U.  S.,  303,  (218) 
Sturgis    V.     Crowningshield,     4 

Wheaton,    122   (188) 
Supervisors  of    Elections  (Case 

of),  114  Mass.,  247,  (135) 


Talbot  V.  Seeman,  i  Cranch,  38, 

(148) 
Taylor  v.  Place,  4  R.  I.,  324,  (19, 

31) 
Telegraph  Co.  v.  Texas,  105  U.  S., 

460,  (80) 
Texas  v.  White,  7  Wallace,  700, 

(156) 
Thompson  v.  Utah,   170  U,  S., 

343,   (160,   163,  224) 
Thompson  v.  Whitman,  18  Wal- 
lace, 457,  (146) 
Transportation  Co.  v.  California 

Railroad     Commission,     236 

U.  S.,  151,  (88) 
Transportation  Co.  v.  Wheeling, 

99  U.  S.,  273,  (52,  82) 
Trebilcock  v.  Wilson,  12  Wallace, 

687,  (39) 
Trustees  of  Dartmouth  College 
V.  Woodward,  4  Wheaton,  518, 

(91) 
Turner  v.  Maryland,  107  U.  S., 

38,.  (81) 
Twining  v.  State  of  New  Jersey, 

211  U.  S.,  78,  (221) 


U 


U.  S.  V.  Aaron   Burr,  Cotton's 

Constitutional     Opinions     of 

John  Marshall,  i.,  100,  (188) 
U.  S.  V.  Black,   128  U.  S.,  40, 

(107,  in,  112,  189) 
U.  S.  V.  Blaine,  139  U.  S.,  306, 

(107,  189) 
U.S.i'.Boyd,  116U.  S.,6i6,  (198) 
U.  S.  V.  Cruikshank,  92  U.  S., 

542  (156,  197,  217) 
U.  S.  V.  Del.  &  Hudson  Ry.,  213 

U.  S.,  366  (88) 
U.  S.  V.  E.  C.  Knight  Co.,  165 

U.  S.,  I,  (72) 


Cases  Cited 


271 


U.  S.  ex  rel.  Daly,  28  App.  D.  C, 

552;  35  Wash.  Law.  Rep.,  81, 

(III) 
U.  S.  ex  rel.  v.  Duell,  172  U.  S., 

576,  (222) 
U.   S.  ex  rel.  Newcomb  Motor 

Co.,  30  App.  D.   C,  464;  36 

Wash.  Law  Rep.,  150,  (iii) 
U.  S.  V.  Fisher,  2  Cranch,  396, 

(26,  27) 
U.  S.  V.  Freight  Association,  166 

U.  S.,  290,  (127) 
U.  S.  V.  HoUiday,  3  Wallace,  407, 

(88) 
U.  S.  V.  Lee,  106  U.  S.,  196,  (133, 

141) 
U.  S.  V.  Louisville  and  Nashville 

R.  R.  Co.,  236  U.  S.,  318,  (198) 
U.  S.  V.  Marigold,  9  Howard,  560, 

(42) 
U.  S.  V.  Rauscher,   119   U.    S., 

407,  (153) 
U.  S.  V.  Rodgers,  150  U.  S.,  249, 

(46,  222) 
U.  S.  V.  R.  R.  Co.,  17  Wallace, 

322,  (59) 
U.  S.  V.  Smith,  5  Wheaton,  153, 

(45) 
U.  S.  V.  Texas,  143  U.  S.,  621, 

(139) 
U.  S.  V.  Villato,  2  Dallas,  373, 

(221) 
U.  S.  V.  Windom,  137  U.  S.,  636, 

(107,  189) 
U.  S.  V.  Wong  Kim  Ark,    169 

U.  S..  649,  (221) 

V 

Vanini   et  al.  v.   Paine  et  al.,  i 

Harr.  (Del.)  65,  (44) 
Veazie  Bank  v.  Fenno,  8  Wallace, 

533,  (62) 

W 

Walker  v.   Sauvinet,   92   U.   S., 
90,  (220) 


Walton  V.   Missouri,  91   U.   S., 

275,  (76,  77) 
Ward  V.  Maryland,  12  Wallace, 

418,  (150) 
Weaver  v.  Fegely,  29  Pa.  St.,  27, 

(36) 
Weeks  v.  U.  S.,  232  U.  S.,  383, 

(198) 
Weems  v.  U.  S.,  217  U.  S.,  394, 

(49) 

Wellington,  Petitioner,  16  Pick- 
ering (Mass.),  96,  (186) 

Wells  V.  Bain,  75  Pa.  St.,  39,  (3) 

West  V.  Cabell,  153  U.  S.,  78, 
(198) 

West  V.  Louisiana,  194  U.  S., 
258,  (220) 

Western  Union  Telegraph  Co. 
V.  Call  PubHshing  Co.,  181 
U.  S.,  92,  (145) 

Weston  et  al.  v.  City  of  Charles- 
ton, 2  Peters,  466  (13) 

Wheaton    v.    Peters,    8    Peters, 

591  (43) 
Whitten  v.  Tomlinson,  160  U.  S., 

231,  (143) 
Wiley  V.  Sinkler,  179  U.  S.,  58, 

(157,  177,  216) 
Williamette    Iron    Bridge    Co, 

V.  Hatch,  125  U.  S.,  I,  (32) 
Williamson  v.  Berry,  8  Howard, 

540,  (147) 
Wilson  V.  New  Ferris,  Receivers 

Mo.  Ok.  and  G.  Railway  Co., 

(64) 
Wisconsin    Central   R.    R.    Co. 

V.   Price  County,    133   U.   S., 

496,  (60) 
Wisconsin  v.  Pelican  Insurance 

Co.,  127  U.  S.,  265,  (140) 
Woodruff  V.  Trapnall,  10  How- 
ard, 190,   (89,  90) 


Yick  Wo  V.  Hopkins,  118  U.  S., 
356,  (206,  211) 


INDEX 


Aliens,  as  citizens  and  allegiance 
of,  I 

Allegiance,  222 
Ambassadors,  119,  120,  137 

Amendments,  protect  funda- 
mental rights,  22;  the  Six- 
teenth,23, 24,57, 61;  I.-XVIL, 
28,  29,  57,  58,  61;  Fourteenth, 
96, 97;  Eleventh,  the,  114, 115; 
first  ten,  173-175,  199,  200; 
Fifth,  Sixth,  Seventh,  Eighth, 
Ninth,  Tenth,  175;  Thirteenth, 
176, 198,200;  Fourteenth,  176, 
198,  200,  206,  207,  216,  217; 
Fifth,  198;  Fifteenth, 222,  223; 
Ninth,  200;  Tenth,  200,  203; 
Fourth,  203;  Seventh,  210 
Anti-Trust  Act,  83,  84,  85 
Appropriations,  22,  171;  of  Re- 
^   presentatives    and    Senators, 

179 
Arizona,  admission  of,  158 
Army,  171 

Asylum,  right  of,  152,  153 
Attainder,  bill  of,  22,  171,  172 

B 

Bank,  State,  89,  90 
Bankruptcies,  36,  37 
Bible,  in  public  schools,  202,  203 
Bill  of  credit,  41 
Bill    of    Rights,    173-175;    the 
Constitution  a,  187,  210,  211 
Bonds,  90 
Boycott,  84 


Cabinet,  the,  105,  106 


California,  law  of,  held  constitu- 
tional, 220 

Carriers,  Common,  87 

Charters,  91 

Checks  and  balances,  164,  165; 
on  the  Executive,  166-169; 
on  Congress,  170-177,  178; 
on  the  States,  1 76-1 81 

Checks  on  Congress,  27 

Chief  Justice,  in  Court  of  Im- 
peachment, 103,  108,  109 

Cities,  jurisdiction  over,  48 

Citizen,  of  a  territory,  of  a  State, 
141,  142;  privileges  and  im- 
munities of,  149,  150,  212, 215, 
220;  as  participant  in  the 
federal  government,  182;  as 
elector,  216 

Citizens,  privileges  and  immuni- 
ties of,  149,  150,  163  (note) 

Citizenship,  defined,  212;  two 
citizenships,  212,213,  226-229 

Civil  Rights  Bill,  218,  219 

Comity,  the  law  of  State,  146- 

163 

Commerce,  regulation  of  inter- 
state, 22;  law  of,  63-88;  regu- 
lation of,  belongs  to  sover- 
eignty, 63,  64;  defined,  67 ', 
State  and  interstate,  63-88; 
unlawful  restraint  of,  72; 
when  an  article  is  of,  73;  dis- 
tinguished from  manufacture, 
73;  "taxation  of  commerce," 
meaning  of,  75;  principal  of 
regulation  of,  76,  77,  78;  inter- 
state, 78,  88;  intra-state,  79, 
80,  88;  "foreign  commerce," 
87,  88 

Confederation,  a  league  7;  un- 
able to  regulate  commerce,  66 


273 


274 


Index 


Congress,  law  making  by,  2,  i8- 
50;  determines  extent  of  taxa- 
tion, regulates  ccmmerce,  pro- 
tects citizens,  determines  jur- 
isdiction of  federal  courts, 
assigns  duties  and  powers  to 
the  President,  25;  powers  of, 
political,  26;  abuse  of  powers 
by,  27;  checks  on,  27;  test  of 
authority  of,  30, 31 ;  powers  of, 
derived,  34,  35;  war  power  of, 
46;  power  over  territory,  48, 
49.  50 J  power  of,  over  com- 
merce, 63-88;  limitation  of 
powers  of,  as  to  commerce, 
69-88;  debates  in,  as  evidence 
in  court,  127;  decides  political 
questions,  128;  governs  terri- 
tory, 158-163;  power  over 
outlying  possessions,  161,  162, 
163;  checks  on,  170-176;  un- 
constitutional legislation,  218, 
219 

Constitution,  the  supreme  law,  i ; 
essential  to  sovereignty,  2; 
ordained  by  the  people,  2; 
a  practical  instrument,  19,  20; 
provides  only  for  judicial 
interpretation,  24;  relative 
rank  with  act  of  Congress,  24, 
25;  unwritten,  27;  how  amend- 
ed, 180,  181;  administrative 
provisions  in,  191,  192;  es- 
sential features  of,  194 

Constitutions,  State,  17 76-1 787, 
21;  limit  Legislatures,  22,  23 

Consuls,  119,  120,  137 

Contracts,  between  citizens  of 
different  States,  37,  38;  obliga- 
tion of,  37;  a  lawful,  40;  law 
of,  the,  89-101 ;  obligation  of, 
tinder  the  Constitution,  93, 
94;  constitutional  use  of  the 
word,  98 

Convention,   107,   108 

Convention  (federal),  6;  to 
amend  Constitution,  1 80,  181 

Cooley,  quoted,  205 

Copyrights,  36,  43 

Corporations,  municipal,  59;  as 
citizen,  139,  142;  rights  of, 
139,  140,  149 


Counterfeiting,  36,  41,  42 
Counties,  jurisdiction  over,  48 
Courts,  inferior,  122  et  seg. 
Courts,  Territorial,  125 
Courts,   Supreme    and    inferior, 
113,  122,  123;  jurisdiction  of 
federal,  115  et  seq.;  Territorial, 
125;    political    questions    and 
the,  126;  do  not  decide  politi- 
cal  questions,    128;    province 
and    duty    of,     129;    judicial 
supremacy,     1 29-131;     essen- 
tial   power    of    the    Supreme 
Court,   142,  143;    federal    sit- 
ting as  State,  144,  145;  limi- 
tation of  federal,  178 


D 


Debts,  of  the  U.  S.,  40 

Domain,  eminent,  exercise  of, 
by  U.  S.  or  the  States,  95,  97, 
98,  99,  100 

"Due  process  of  law,"  charit- 
able institutions  not  entitled 
to,  or  a  person,  60;  a  funda- 
mental right,  95,  204,  220 

Duties,  export,  22;  uniform,  40, 
171 

Duty,  a  ministerial,  no,  in, 
112 


E 


Election,  disputed,  of  President 

or  Vice-President,  180 
Elections,  disputed  presidential, 

167 
Electors,  denial  of  right  of,  179 
England,  as  sovereign,  2 
Excises,  40,  171 
Executive,     law     of,     102-112; 

checks  on,  166-169 
Exemption,       from        taxation 

(Churches,  Schools,  etc.),  60; 

from  income  tax,  61 
Expatriation,  222 
Expenditures,  public  statement 

of,  22 
Ex  post  facto  law,  22,  171,  177, 

224 


Index 


275 


F 


Federalist,  The,  quoted  or  cited, 
4,  8,  12,  13,  17,  33,  34,  35, 
36,  116,  117,  118,  187 

Fee,  license,  74 

Felonies,  44 

Florida,  as  a  territory,  status  in 
U.  S.,  127 

France,  as  sovereign,  2 

Fugitives  from  justice,  151,  152; 
political,   153,    154 

Ft.  Leavenworth  Military  Reser- 
vation, 48 


G 


Gallatin,  Albert,  on  Louisiana 
purchase,  14,  15 

Government,  representative,  2 ; 
republican  form  guaranteed, 
6;  a  unit,  19;  distinguished 
from  sovereignty,  23;  limited, 
affected  by  Sixteenth  Amend- 
ment, 23,  24;  national,  when 
supreme,  34;  nature  of  na- 
tional, 38;  Marshall's  differ- 
entiation between  State  and 
federal,  51;  of  the  U.  S.,  dis- 
tinct from  the  State,  116; 
what  constitutes  a  lawful 
State,  128;  principal  of  separa- 
tion of  powers  of,  135,  136; 
of  the  U.  S.  power  of,  137,  138; 
what  is  a  republican  form  of? 

154.  155,  156 
Governor,  power  of  extradition, 
151,     152;     issues    writs     of 
election,  179 


H 


Habeas  Corpus,  21,  143 

Hamilton,  on  National  and  State 
systems,  13;  as  interpreter  of 
the  Constitution,  28;  as  to 
State  and  federal  sovereignty 
35»  36;  on  residuary  sovereign- 
ty, 177;  on  the  Constitution  as 
a  Bill  of  Rights,  187 

Hayes,  President,  on  power  of 
the  President,   109,  no 


House  of  Representatives  (U.  S.) 
members,  103,  172,  179;  elec- 
tion of,  182,  216.  {See  also 
Congress,  Powers.) 


Impeachment,  107 

Imports,  40 

Imposts,  171 

Information,     prosecution     by, 

220 
Interstate  commerce,  testimony 

before,  225,  226 


Jefferson,  on  Louisiana  purchase, 
13;  as  interpreter  of  the  Con- 
stitution, 28 

Johnson,  President,  103 

Judges,  boimd  by  the  Constitu- 
tion, I 

Judiciary  Act,  141 

Judiciary,  as  agent,  3,  4;  law  of 
judicial  power,  the,  1 13-145; 
supremacy  of,  129-133 

Jurisdiction,  of  congress  and 
legislatures,  18-50;  principle 
of,  38,  of  the  U.  S.,  45,  58,63; 
of  a  State,  48 ;  State  and  fed- 
eral compared,  51,  68,  72,  73, 
78,  80,  81,  82,  86,  91,  92,  95, 
97;  the  test,  53;  of  the  Execu- 
tive, 1 02-1 12;  of  the  Judiciary, 
1 13-145;  of  Supreme  and  of 
inferior  federal  courts,  118, 
119,  120,  122,  123;  admiralty, 
121;  federal  and  State  dis- 
tinguished, 124,  125;  as  to 
political  questions,  126,  127; 
original  of  Supreme  Court,  136, 
137;  national  commercial,  137; 
principal  of  State,  146,  147; 
no  new  conferred  by  the 
constitution,  146;  determines 
citizenship,    151 

Jury,  as  used  in  the  Constitu- 
tion, 209,  210;  indictment  of, 
220 

Justice,  principles  of  natural, 
50 


2/6 


Index 


Kansas,  jurisdiction  over  Ft. 
Leavenworth  Military  Reser- 
vation, 48 

Kentucky  and  Virginia  Resolu- 
tions, 17  (note) 


Law,  presumption  of,  31;  test  of 
constitutionality,  30,  3 1  ;|,bank- 
rupt,  insolvent,  37,  38;  postal, 
42;  patent,  44;  common,  45; 
inspection,  81;  due  process  of, 
95;  what  is  constitutional?  132, 
135;  ^*  post  facto,  22,  171, 
224 

Legislatures,  State,  powers  of, 
22,  35-37,  53,  90;  discretion 
of,  54, 79;  appoints  presidential 
electors,  167;  office  of,  218 

Limitations,  the  law  of,  164- 
190 

Lincoln,  Levi,  on  Louisiana  pur- 
chase,  14 

Lincoln,  President,  on  law  of 
limitations,  166;  on  tenure  of 
Cabinet  officers,  105 

Liquors,  97,  98 

Louisiana,  power  to  purchase, 
13,  14,  15 

M 

Madison,  defines  a  republic,'4,  5; 
on  power  of  national  govern- 
ment, 12,  13 

Mails,  42;  and  lottery  tickets, 
43. 85, 86 

Mandamus,  in 

Manufacture,  distinguished  from 
commerce,  73 ;  right  to,  98 

Marque  and  reprisal,  37 

Marshall,  Chief  Justice,  defines 
U.  S.  government,  6,  7;  on 
taxing  power,  9,  10;  on  war 
and  treaty-making  powers,  1 5 ; 
enthrones  Hamilton's  ideas, 
28;  on  sovereignty,  34;  dis- 
tinction by,  between  State  and 
federal,  51;  on  regulation  of 


cornmerce,  6^,  119;  on  inter- 
national law,  148;  lays  down 
principle  of  constitutional  in- 
terpretation, 186,  187 

Massachusetts,  constitution  of 
1780,  5 

Measures,  36,  37 

Ministers,  public,  119,  120,  137 

Monopolies,  72,  83,  84 

N 

Naturalization,  221 
Nobility,  title  of,  172 
Nuisance,  97 
Nullification,  17 

O 

Oath,  2 

Office,  legal  right  to,  91;  con- 
stitutional meaning  of,  103 


Package,  original,  75 

Parliament,  21 

Parties,  political,  interpret  the 
Constitution,  27,  28 

Patent  rights,  36,  43 

People,  The,  sovereign,  2;  au- 
thor of  supreme  law,  5,  6; 
power  to  amend  constitution, 
7;  sovereignty  of,  12,  13 

Piracies,  44,  45 

Polygamy,  203 

Possessions,  outlying,  power  of 
Congress  over,  161,  162,  163 

Post  offices,  42 

Post  roads,  42 

Powers,  derivative  2;  original 
and  derivative  distinguished, 
5;  taxing,  9;  legislative,  18- 
50;  defined,  18;  character  of, 
18-50;  separation  of,  19,  20; 
of  respective  Houses,  20,  21, 
22;  limitations  of,  18,  22-  23, 
24;  American  doctrine  of,  19; 
parliamentary,  20,  21;  nature 
and  extent  of  Constitutional, 
21;  of  Congress  reflect  eight- 
eenth century  ideas,  25,  26; 
of    Congress    derivative,    34, 


Index 


277 


Powers — Continued 

35;  implied,  36;  conflict  be- 
tween State  and  federal,  36- 
39;  implied  or  expressed,  38, 
39.  55;  police,  42-45,  73,  74, 
79,  81,  91,  92,  98,  121,  205- 
208;  of  Congress  as  to  crime 
or  immorality,  42;  taxing,  52, 
et  seq.;  of  State  governments, 
55.  56;  judicial  review  of 
taxing,  57,  58;  police  powers  of 
U.  S.  and  States  distinguished, 
68;  residuary  of  States,  73; 
taxing  by  State  and  U.  S. 
defined,  76;  law  of  executive, 
102-112;  law  of  judicial,  113- 
145;  the  U.  S.  Government, 
137-139;  exact  division  be- 
tween State  and  federal  un- 
known, 183;  delegated,   191 

Preamble,  26,  76 

President,  veto  of,  2;  military 
and  naval  power,  46;  executes 
U.  S.  laws,  46;  character  of 
his  decisions,  46,  47 ;  nature  of 
powers  of,  102-112;  oath  of, 
102;  trial  of,  103;  test  of  execu- 
tion of  office  of,  103;  Johnson, 
103;  impeachment  of,  102, 103, 
107,  108 

Principles  of  Constitutional  law, 
as  to  sovereignty,  9,  39,  217; 
separation  of  powers,  19; 
limitations,  22,  27;  learned 
from  judicial  decisions,  30; 
as  to  adequate  federal  powers, 
33>  34.  54;  of  natural  justice, 
50;  as  to  commerce,  70;  as  to 
the  police  power,  92;  as  to 
obligation  of  contracts,  93; 
consequentive  damages,  99 ; 
of  judicial  power,  130;  136; 
of  federal  judicial  jurisdiction, 
142,  143;  of  State  comity,  147, 
150;  as  to  powers  of  Congress, 
183;  constitutional  interpre- 
tation, 186,  187;  fundamental 
rights,  191-211;  equality  of 
citizens,  217;  due  process  of 
law,  219,  220;  of  citizenship, 

'22 1 

Prohibition,  97,  98 


Receipts,  publication  of,  22 

Residuary  sovereignty,  12 

Revenue,  bills  of,  172 

Rights,  the  law  of  fundamental, 
190-21 1 ;  religious  liberty,  191, 
195 ;  freedom  of  speech,  of  the 
press,  196,  197,  right  of  peti- 
tion, 197;  exemption  from 
searches  and  seizures,  197, 
198,  225;  life,  hberty,  pro- 
perty, 199;  reahzed  through 
the  Judiciary,  201;  relation 
to  Constitutional  limitations, 
202;  trial  by  jury,  209,  210; 
bills  of,  210,  211 


Senate  (U.  S.)  members,  103, 
172, 179;  treaties,  104;  as  Court 
of  Impeachment,  108;  repre- 
sents the  States,  180;  election 
of,  216.  (See  also  Congress, 
Powers.) 

Services,  Constitutional  meaning 
of,  103 

Sovereignty,  agent  of,  2,  3,  4,  5, 
6,  8,  9,  10,  II,  12;  delegated  to 
Congress,  19,20;  of  the  people, 
34;  Hamilton  on  State  and 
federal,  35,  36;  national,  38, 
39,  41,  100;  possessed  by  U.  S. 
and  by  States,  47;  State  dis- 
tinguished from  federal,  51; 
as  to  commerce,  63;  of  Con- 
gress over  outlying  posses- 
sions, I 61-163 

State  (in  the  Union),  quasi- 
sovereign,  2;  Legislature,  2; 
sovereignty  of,  6-9,  55,  100; 
supremacy  of,  34;  powers  of 
Legislatures  derivative,  35, 
36 

State,  powers  of  legislature  ex- 
tinguished by  Congress,  36; 
implied  powers  of,  36;  power  to 
punish  counterfeiting,  41,  42; 
police  power  of,  43,  44,  45, 
79,  81, 91,92,  98,  121,  205,206, 
207,  208;  meaning  of  "State" 


278 


Index 


State — Continued 

in  the  Constitution,  47,  48, 
141;  and  U.  S.  possess  sover- 
eignty, 47;  sub-divisions  of, 
48;  system  of  State  govern- 
ment distinguished  from  fed- 
eral, 51;  power  of,  over  com- 
merce, 64,  67;  limitation  of 
jurisdiction  of,  82;  may  be 
petitioned,  not  suable,  114, 
115;  what  constitutes  a  re- 
publican form  of,  128;  su- 
ability, 140;  the  word  "  States" 
in  the  Constitution,  141; 
jurisdiction  of,  determined, 
147;  principle  of  relation  of 
State  to  State,  147,  148;  law 
of  in  federal  courts,  148;  the 
States  mutually  foreign  to  one 
another,  148;  rights  of  citizens 
of,  149;  admission  of  a,  156, 
157;  the  States  indestructible, 
158;  new  States,  173;  limita- 
tion of  power  of,  1 76-1 81;  the 
States  as  limitations  on  the 
U.  S.,  179,  180;  appoints 
presidential  electors,  179;  sub- 
division of,  180;  guaranteed  a 
republican  form  of  govern- 
ment, 180;  States  and  amend- 
ment of  the  Constitution,  180, 
181;  citizenship,  213 

Suffrage,  223 

Supreme  Court  of  the  U.  S., 
Marshall's  decisions,  28;  prin- 
ciple of  interpretation,  31, 
34,  39,  186;  on  boundary  be- 
tween the  federal  and  State 
systems,  51;  part  of  the  judi- 
cial department,  56;  powers 
not  delegated,  59;  has  not 
defined  power  over  commerce, 
63;  nature  of  power  of  U.  S. 
over  commerce,  65,  76,  77; 
decisions  on  Anti-Trust  Act, 
83,  84;  on  obligation  of  con- 
tracts, 93;  adequacy  of  its 
authority,  106;  on  executive 
and  ministerial  powers,  112; 
judicial  power  of,  113,  114 
et  seq.',  jurisdiction,  original 
and    appellate,    1 19-136;    on 


the  war  power,  127;  nature 
of  jurisdiction,  129-142;  de- 
termines constitutional  law, 
133-135;  jurisdiction  under 
the  Judiciary  Act,  141;  re- 
lation to  State  tribunals,  144, 
145;  as  to  republican  form  of 
government,  155,  156;  de- 
cision of  as  to  power  of  Con- 
gress over  Territories  and 
possessions,  160-163,  183,  184, 
201;  on  delegated  powers,  175; 
jurisdiction  when  a  State  is  a 
party,  178;  function  of  the 
Judiciary,  185;  power  of  U,  S. 
to  acquire  territory,  193; 
power  vested  in,  194;  on  the 
nature  of  American  institu- 
tions, 210,  211;  on  citizens' 
rights,  214;  on  "due  process 
of  law,"  220;  on  the  Fifteenth 
Amendment,  222,  223 
'Sweeping  Clause,"  26 


Tax,  export,  22;  52;  essentials  of 
a  good,  52,  60,  61;  income,  58 
{and  see  under  Amendment); 
exemptions,  60 ;  direct,  indirect, 
61 

Taxation,  law  of,  51-62;  by  a 
State,  52-56;  national,  54; 
power  of  U.  S.  over,  65,  66 

Tender,  legal,  38,  39 

Territory,  when  sovereign,  47; 
power  of  Congress  over,  48, 
141,  183;  the  law  of,  and  of 
territories,  146-163;  becoming 
a  State,  157,  158;  governed  by 
Congress,   159,   160,   162,   163 

Texas,  law  of,  regulating  com- 
merce, 80 

Tickets,  lottery,  43,  83,  85 

Treason,  172 

Treaties,  104;  In  the  Senate,  180 


u 


United  States,  supreme  law  of, 
2  ei  seq.;  laws  of,  by  whom 
made,  2;  guarantees  republi- 


Index 


279 


can  form  of  government,  6; 
sovereignty  of,  8-13;  organi- 
zation of,  reflects  popular  will, 
1 8 ;  governmental  functions 
of,  19,20;  powers  of,  20  et  seq.; 
admiralty,  jurisdiction  of,  45, 
46;  war  power  of,  46;  and 
States  possess  sovereignty, 
47;  civil  system  of,  distin- 
guished from  State,  51 ;  powers 
of,  as  to  States,  54-57;  power 
over  commerce,  63-88;  the 
peace  of,  85;  police  power  of, 
95;  citizenship,  214,  216,  217 


Veto,  2 
Vice-President,  108 

W 

Waite,  Chief  Justice,  quoted,  92 

Waters,  navigable,  46 

Webster,  Daniel,  his  definition 
of  law,  205 

Weights,  36,  37 

Wilson,  James,  on  the  Constitu- 
tion a  Bill  of  Rights,  187, 188 


UC  SOUTHER',  RF 


'LVER-Rf  FACILITY 


AA    000  842  873    2 


